Ammann v State of New South Wales Prince of Wales Hospital

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Ammann v State of New South Wales - Prince of Wales Hospital [2022] NSWPIC 443
APPLICANT:	Stephanie Ammann
RESPONDENT:	State of New South Wales- Prince of Wales Hospital
PRESIDENT’S DELEGATE:	Parnel McAdam
DATE OF DECISION:	8 August 2022
CATCHWORDS:	Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987 (1987 Act); statutory interpretation; volunteer work; consideration of meaning of “employment in work”; Held — the applicant had no current work capacity based on medical information; award made under section 38 of the 1987 Act.
ORDERS MADE:	The President directs: 1. The respondent is to pay the applicant weekly compensation at the rate of $1,072 per week pursuant to s 38 of the Workers Compensation Act 1987 from 18 April 2022 to date and continuing. 2. The above amount is to be indexed from time to time in accordance with the legislation.

STATEMENT OF REASONS

BACKGROUND

Ms Ammann (the applicant) is originally from Switzerland and came to Australia to further her studies in theology. She worked as an administration officer at Prince of Wales Hospital (employed by the State of New South Wales, the respondent) in the cancer services unit. Ms Ammann is no stranger to cancer, having recovered from Hodgkins Lymphoma a few years ago.
She sustained a psychological injury on 18 June 2019 in the context of an excessive workload, and a lack of training and support. Since her injury she has only worked briefly doing babysitting. This work became too much for Ms Ammann.
On 6 January 2022, the respondent issued a work capacity decision determining that Ms Amman was capable of work for 3 hours per day, 2 days a week. That decision as due to take effect on 18 April 2022, due to the notice provisions contained in s 80 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
As it transpires, on the same day a separate decision was issued with reference to the provisions of s 38 of the Workers Compensation Act 1987 (the 1987 Act), determining that Ms Ammann did not meet the requirements to continue to receive weekly payments after 130 weeks. This decision was also said to take effect on 18 April 2022.
Ms Ammann commenced proceedings in the Personal Injury Commission (the Commission) on 14 April 2022. The matter proceeded to a teleconference on 6 May 2022. The applicant had brought a case concerning the dispute notice addressing s 37 of the 1987 Act (the work capacity decision reducing weekly payments based on a capacity to earn in suitable employment). It was identified, during the course of the proceedings, that s 38 was a genuine issue and that a dispute notice issued relying on s 38 had been issued on the same day. The applicant was caught by surprise and not prepared to address those issues. The notice relying on s 38 was not attached to the Reply.
Accordingly I issued a direction:
(a) calling for the respondent to lodge and serve the relevant s 78 notice, relying on s 38 of the 1987 Act;
(b) giving the applicant an opportunity to obtain further evidence and file submissions, and
(c) giving the respondent an opportunity to respond to those submissions.
I took this somewhat unusual course, noting the expedited nature of these type of proceedings, as the applicant is in an unusual position. As an immigrant on a specific type of visa, she is unable to work in Australia and unable to access social security benefits accessible to Australian residents through Centrelink. Had the applicant been forced to discontinue the proceedings, she would not have had the benefit of a stay pursuant to s 289B of the 1998 Act. This would have placed the applicant in a perilous financial position.

Issues in dispute

The issue in dispute in this matter is one of capacity for suitable employment. The question is whether the applicant falls within the provision of s 38(2) or 38(3) of the 1987 Act, that is whether the applicant can be said to have “no current work capacity” or “current work capacity”.

The legislation

As this dispute concerns suitable employment, I must consider the definition 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.”

Section 38 of the 1987 Act relevantly provides:
“(1)    A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings…”
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the 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.”

The evidence

I have reviewed all of the evidenced lodged by the parties attached to the Application for Expedited Assessment (the Application) and Reply. The documents are contained in the Application, the Reply, an Application to Admit Late Documents lodged by the respondent, and the submissions filed by the applicant which attach a report provided by Dr Peter Anderson. The key documents relevant to the determination of the issues in dispute are discussed below.

The dispute notices

There are two relevant dispute notices in the present matter, both issued on 6 January 2022. The “downgrade” notice and the s 38 notice. As discussed above, the applicant commenced proceedings prepared to challenge the downgrade notice only. The s 38 notice issue only became apparent during the course of the teleconference.
The downgrade notice determined that Ms Ammann could work for 3 hours, 2 days a week in the role of pastoral care/religious assistant. The downgrade notice adverted to the looming s 38 cut off, albeit in a confusing way, noting that the insurer had “received your application to continue to receive weekly payments after 130 weeks on 29 September 2021” and “we will further review your ongoing entitlement approaching 18 April 2022”. This is despite the fact that on the same day the downgrade notice was issued, the s 38 notice was also issued.
The s 38 notice contained the same wording regarding the “further review”, although commenced with:
“Thank you for your time on the phone. As discussed a decision has been made that you do not meet the requirements to continue to receive weekly payments after 130 weeks”.
The s 38 notice also states that the decision will take effect in the following way: “Because of this decision your weekly payments will come to an end when you reach the effective date of your work capacity decision on 18 April 2022”.
Attached to the respondent’s Application to Admit Late Documents is an email sent on 6 January 2022. This email is somewhat confusing and refers to the two dispute notices. The email is headed “185250EML Work Capacity Decision & S38 Decision Letters” and apparently attaches both dispute notices, although refers to a “second letter that will be sent but was not able to get through”. The downgrade notice is said to be attached as well as an assessment of “S38 eligibility (also attached)”. The email explains the downgrade to $845.20, but goes on to state:
“This will normally be effective within 3 months and 7 days of the decision being issued however, at this stage that will not be applicable due to you not meeting the S38 special requirements and therefore ceasing your weekly payments to $0.00 (Nil) on the effective date of the Work Capacity Decision 18th April 2022.”
The email also talks about “reassessing” entitlement:
“Please be advised that EML will be reassessing your entitlement prior to the 18/04/2022 in case your circumstances change with your visa and working status (earning/working 15 hours by the cessation date) which may result to your entitlements continuing.”

The vocational assessment report

The downgrade notice relies heavily on a vocational assessment report dated 16 November 2021. That report is prepared by Ms Jo-Elle Warhurst, a registered psychologist and rehabilitation consultant.
The report commences with “Thank you for referring Ms Stefanie Ammann to Resilia for assistance with her recovery”. I find this disconcerting as that does not appear to be the purpose of the referral. It may have been presented that way to Ms Ammann, but the report has clearly been used for the purpose of reducing Ms Ammann’s entitlement under s 37 of the 1987 Act, and ultimately discontinuing her payments under s 38. I am not sure how this assists with her recovery. I also note that the vocational assessment was completed via telephone.
The report outlines a history of the onset of injury due to workload issues, consistent with other histories recorded elsewhere. The background to the report concludes with the following:
“She confirmed that when her claims manager was changed on 13 August 2021 and she was referred to Resilia for a vocational assessment to secure her a volunteer work placement as her current visa disallows her from securing paid employment.
A Vocational Assessment was requested to identify appropriate volunteer vocational goals as Ms Amman is unable to return to work performing her pre-injury role as her contract ceased on 8 November 2019. Her visa conditions do not currently allow her to participate in paid employment.
Ms Ammann was engaged and actively involved throughout the entire vocational assessment and was open to considering a variety of viable potential volunteer roles.”
There are a few points of note from the above. Firstly, Ms Ammann is unable to work due to her visa status. Secondly, the vocational assessment was requested to identify “appropriate volunteer vocational goals”. Thirdly, Ms Ammann was said to be open to considering “potential volunteer roles”.
The report sets out Ms Ammann’s qualifications (in theology and ministry) and transferrable skills, and identifies the roles of pastoral care/religious assistant, dog walker and nanny as “vocational options for further consideration”. The confirmation of rehabilitation goal was “to obtain new employment in a voluntary capacity”.
A vocational assessment report dated 6 December 2021 is also included, also prepared by Ms Warhurst. It is not clear how this report differs to the November version, other than the inclusion of a labour market analysis. The labour market analysis analyses each of the roles identified, and includes employer contacts for each role.
For the pastoral care role, Ms Ammann was said to be a strong contender “once she increases her current hours from six to 16-24 hours per week”. The role of dog walker was said to be suitable as she has transferrable skills in “time management, manual handling, punctuality, organisation and customer service skills”, although has no previous experience with dogs. A work trial was recommended. For the role of nanny, Ms Ammann was said to be suitable when she obtains a first aid certificate, police check and working with children check. The employer contacts confirmed that they desired people who could work 15-20 hours per week.

Reports of Dr Peter Anderson

Dr Anderson is a consultant psychiatrist who prepared an independent medical expert report on behalf of the applicant dated 19 March 2021. It appears that this report was prepared for a lump sum compensation claim. Dr Anderson refers to a “previous assessment of 31 January 2020” that is not before me.
He takes a history of injury as well as the Hodgkin’s lymphoma and treatment thereof. Dr Anderson discusses Ms Ammann’s routine and functioning and findings on examination. His diagnosis is of a chronic adjustment disorder with mixed anxiety and depressed mood.
Dr Anderson provides and assessment under the Psychiatric Impairment Rating Scales (PIRS). For self care and personal hygiene, he describes that Ms Ammann “remains in pyjamas when not attending appointments or other activities. There is diminished attention to self-care generally”. She is avoidant of social activities and has some anxiety with travel.
More relevant to her capacity (although noting this report is over 12 months old), Dr Anderson describes issues with concentration:
“She has subjective ‘fogginess’ with loss of the train of thought, some difficulty concentrating in conversation, and a cessation of reading of books, with retained capacity to read short articles online. She has dropped the plans to study further at tertiary level and, on current presentation, would not have the concentration, persistence or pace to do so.”
Dr Anderson assesses the scale of employability as class 4 providing the following reasons:
“Psychiatric injury restricts employability to short hours of non-stressful work. Babysitting is the subjectively favoured option. She has dopped plans for further study and establishing a business for herself. She currently doubts her capacity to cope with babysitting”.
Dr Anderson comments on work capacity “in the past, currently, and into the future”:
“Your client became unfit for her pre-injury work in administration. She continues to be unfit for that and is likely to be unfit into the future. It had been her intention to complete further studies and establish a business, but she has now withdrawn those intentions on the basis of her mental health, and I agree with her that she is not likely to be able to do that. She continues to be fit for part-time non stressful work, and that should be restricted to short hours. It is likely that restriction will continue into the future.”
Dr Anderson also provides a further report on 30 May 2022. He was referred information about the work capacity assessment, and documents referred included Ms Amman’s statements and Ms Amman’s partner’s statement. Dr Anderson discusses his previous opinion, discussed above, regarding non-stressful work on a part time basis. He discusses the content of Ms Ammann’s statements and notes:
“I accept the statement of Stefanie Ammann dated 14 April 2022, as I have previously found her to be honest and also invested in the prospect of getting back to work.”
He concludes:
“In the basis of the attached statements I do alter the opinion I expressed in my reports regarding her earning capacity. As usual, a change in the facts leads to a change in expert opinion.
On the basis of the reported experience subsequent to my reports, I think it more likely than not, that she does not have any work or earning capacity now or into the future.
For completeness, I have considered the matter of part-time work as a Pastoral Care/Religious Assistant. I do not think she is fit for that.”

Reports of Dr Ben Teoh

Dr Teoh provides an independent medical expert report, dated 15 February 2022 on behalf of the respondent. Interestingly, this report is attached to the Application whilst Dr Anderson’s report is attached to the Reply.
Dr Teoh takes a consistent history of injury, background and other medical issues. He provides a diagnosis of chronic adjustment disorder with mixed anxious and depressed mood. Her prognosis was said to be guarded. Dr Teoh opined that Ms Ammann was fit to work suitable duties, but not pre-injury duties.
His ratings under the PIRS are included in a separate report of the same date. He makes a different finding in relation to self care, but notes the following concentration issues:
“She reported that she has been experiencing ‘brain fog’. She has persistent anxiety and depressive symptoms. She reported a loss of appetite and has been socially withdrawn. She has had acute anxiety attacks and fleeting suicidal ideation”.
In terms of employability, Dr Teoh actually assessed higher than Dr Anderson. He describes her as:
“She is unfit to work. She had last worked in June 2019. She had tried to work in babysitting, but she was overwhelmed with anxiety symptoms.”

Evidence of Dr Cheng

Dr Cheng is the applicant’s treating general practitioner. He provides a number of relevant documents in evidence, although has not provided a report. In a certificate of capacity dated 7 April 2022, he certifies Ms Ammann as having no current work capacity with reference to the report of Dr Teoh dated 10 February 2022.
Prior to that date, Dr Cheng had certified Ms Ammann with capacity to work for 3 hours per day, 2 days per week for an extended period of time (from 30 April 2021).
Dr Cheng also provides a faxed approval of the suitable employment options identified in the vocational assessment reports. He approves each role, with the comment in relation to nanny being “await vaccinations first” due to her stem cell treatment following her cancer.

Reports of Dr Saeed

Dr Saeed is Ms Ammann’s treating psychiatrist. He provides a number of reports, the first dated 20 April 2021. In this report he provides a diagnosis of adjustment disorder with symptoms of anxiety and depression. Dr Saeed was asked about a graduated return to work plan, and he comments:
“Stefanie is willing to participate in vocational rehabilitation and would be suited to part-time volunteer work to start with. This would need to be introduced in graduated manner. It may be noted that Stefanie feels frustrated with the handling of her Work Cover claim and maintains that she has consistently expressed interest in vocational rehabilitation and has communicated this to EML.”

He recommends further therapy.
In a report dated 29 June 2021, Dr Saeed answers some questions that are not apparent before me. Relevantly, he states:
“Re question 3: In my opinion, Ms. Ammann’s functional capacities are improving and can be expected to continue to do so with the help of the current treatment regime. While I cannot predict a time frame for when she will be fully recovered in functional terms, I reiterate (as I wrote in my previous report date 20/4/21), that she may be capable of commencing voluntary work on a part-time basis and that with the assistance of a Return to Work coordinator she may be able to embark on this shortly.”
No further reports of Dr Saeed are before me.

Submissions

As discussed, due to the unusual nature of the claim and the changing scope of the dispute which became apparent at the teleconference, I issued a direction calling for written submissions. The below represents a summary of those submissions.

Applicant’s submissions

The applicant commences by setting out the background to the teleconference that occurred on 6 May 2022. The applicant describes the issue of two s 78 notices and describes them as “fundamentally contradictory”.
The applicant refers to the qualifying criteria in s 38(3) for the continuation of weekly payments and submits that the assertion in the s 38 notice that no continuation of weekly payments form was submitted is incorrect. The applicant goes on to submit that the requirement contained in s 38(3)(b), that is that the worker being working for at least 15 hours per week and earning at least $155 per week does not apply to works who have “no current work capacity” which is likely to “continue indefinitely”, with reference to s 38(2) of the 1987 Act.
The applicant refers to the vocational assessment report and notes that the qualifications of Ms Warhurst are unclear, and that there are no details about the academic qualifications she has received, nor the nature of her registration. It is noted that Ms Warhurst only interviewed the applicant on one occasion by telephone.
The applicant submits that I would not be satisfied that Ms Warhurst has a degree of expertise that would enable her opinions to be received into evidence. Further, the applicant submits that the report is not actually opining that Ms Ammann is fit to do any particular work, but rather what has been identified are vocational options to be pursued in a voluntary capacity. It is submitted that the word voluntary is significant, and envisages that the activity would be unpaid.
The applicant refers to the definitions of “current work capacity” and “no current work capacity” in cl 8 and 9 of Sch 3 to the 1987 Act, and submits that the definition is not describing voluntary activities, but earnings and hence paid work. The applicant refers to the approval of Dr Cheng, and notes that it refers to the applicant participating in “volunteer employment”. It is submitted that this is not an expression of opinion that the applicant is fit to perform any paid employment in these pursuits. The applicant refers to the certificates of capacity which express a similar restriction regarding “volunteer” work. The applicant submits that the opinion of Dr Cheng is equivalent to an opinion that the applicant has no current work capacity.
The applicant goes on to refer to the report of Dr Teoh, who assess 17% whole person impairment with a finding of class 5 for employability. The applicant submits that this is also an opinion that she has no current work capacity, and should be preferred to the quote on page 5 of the report that the applicant is “fit to work suitable duties but not her pre-injury duties”.
The applicant then refers to the statement of Ms Ammann and her partner which describe what occurred when she attempted to babysit. These statements have been read by Dr Anderson, who accepts them as truthful, and accordingly changes his opinion concerning the applicant’s capacity to perform some work, stating that the applicant does not have any work or earning capacity.
The applicant submits that the greater expertise of Dr Teoh and Dr Anderson as psychiatrists should be highly persuasive to reach the conclusion that Ms Ammann has no current capacity for work and it is likely to continue indefinitely.
It is submitted that I should be satisfied that the applicant continues to have no current capacity for work, that it is likely to continue indefinitely, and that as a consequence, the applicant satisfies the appropriate test in s 38(2) to be entitled to receive ongoing weekly compensation.

Respondent’s submissions

The respondent’s submissions commence by setting out the background to the two dispute notices, covered above.
The respondent then provides the following submissions in response to the applicant’s submissions:
(a) the respondent first concedes that there is an apparent error in the s 38 decision, agreeing that the form for continuing payments after 130 weeks was provided;
(b)    the respondent submits that Ms Warhurst obtained a Bachelor’s degree in psychology, a post-graduate degree in applied psychology, and a Master’s degree in psychological research methods;
(c)    the respondent submits that although Drs Teoh and Anderson are highly qualified to comment on diagnosis, causation and impairment, the worker’s treating general practitioner is best placed to comment on the applicant’s capacity for work;
(d)    Dr Cheng amended his views on capacity on review of Dr Teoh’s report. He has provided no explanation for his downgrade (to no capacity) other than in reference to Dr Teoh’s report;
(e)    the respondent notes that Dr Anderson refers to a previous report dated 12 August 2021, but that report is not available. No reasons are provided for why the applicant is not fit to work as a babysitter or part time pastoral care worker. Dr Anderson did not address the applicant’s for capacity as a dog walker, and
(f)    Dr Anderson has not adequately addressed the nature of the applicant’s partial incapacity in terms of restrictions, how long they should apply, and what steps or treatment should be taken to address incapacity.
The respondent goes on to make specific submissions in support of their case that Ms Ammann has some capacity for work in suitable employment, consistent with the downgrade notice. The applicant relies on the downgrade notice and submits that the applicant does not meet the preconditions of s 38(3) for an ongoing entitlement to weekly benefits beyond 130 weeks.
The respondent refers to the definition of suitable employment in s 32A and “current work capacity” in Sch 3 to the 1987 Act. The respondent submits that the applicant has a current work capacity to work in suitable employment.
The respondent refers to the certificates of Dr Cheng in the period 30 April 2021 to 22 March 2022, in which he considered the applicant had capacity for 3 hours per day, 2 days per week, with reference to “Dr Saeed’s plan”. Dr Saeed’s plan is contained in his reports dated 20 April 2021 and 29 June 2021, which expressed a view that Ms Ammann may be capable of commencing voluntary work on a part time basis.
The respondent submits that the fact that the work was described as “volunteer work” or “voluntary” is not a reflection of capacity or incapacity for paid work. This is a reflection of the applicant’s visa restrictions, which do not currently allow for paid employment. The respondent also submits that the reference to vocational options as voluntary in the vocational assessment report was also on the basis of her restricted visa. The respondent submits that the voluntary nature of the suitable employment options was to accommodate the applicant’s desire to strengthen her vocational capacity until she was able to undertake paid employment.
The respondent referred to the report of Dr Teoh noting the difference between the conclusion regarding “employability” in the PIRS table in contrast with the comment that Ms Ammann is “fit to work suitable duties, but not her pre-injury duties”.
The respondent relies on the vocational assessment report and the sign off of the vocational options recommended in that report by Dr Cheng.
The respondent refers to two claims for payment, evidence of which was attached to the Reply. Those claims were for a police check and a CPR/first aid certification. The respondent submits that the applications were made after Ms Ammann’s attempts to work as a babysitter, and demonstrate a willingness to pursue return to work goals.
The respondent submits that the evidence must result in a finding that the applicant has a current work capacity for suitable employment, and that the downgrade notice should be upheld.
The respondent then refers to the s 38 notice, and concedes that there may have been some confusion as a result of the two notices being sent on 6 January 2022. However, that was due to a requirement that a work capacity decision be made prior to a s 38 decision being made. The respondent submits that any decision made to cease payments after 130 weeks does not require any notice period other than the normal seven days for service by post, but due to the downgrade notice, the applicant continued to receive payments until 18 April 2022.
The respondent submits that the s 38 notice should stand as the applicant has not returned to work for at least 15 hours per week and is not earning at least $202 per week, and has not been assessed as indefinitely unable to undertake further work to increase her earnings in accordance with the downgrade notice.

Discussion

The definition of suitable employment in s 32A of the 1987 Act contains a list of relevant matters for consideration. The present dispute is purely a medical one concerning the “nature of the worker’s incapacity”.

The nature of the incapacity

Ms Ammann has been receiving weekly compensation benefits for a period now in excess of 130 weeks. She is now in the “period after second entitlement period” or the s 38 period. There are a number of distinct requirements that must be met in order to receive payments in the s 38 period.
Where a worker has “current work capacity” they are entitled to compensation after the second entitlement period only if (paraphrasing s 38):
(a)    they have applied to the insurer in writing for the continuation of weekly payments;
(b)    they have returned to work for at least 15 hours per week and are in receipt of current weekly earnings of at least $155 per week (now indexed to $202 per week), and
(c)    the worker is, and is likely to continue indefinitely to be, incapable of undertaking further additional employment that would increase the worker’s current weekly earnings.
There was an initial dispute as to whether the applicant had applied to the insurer for the continuation of weekly payments. The respondent conceded that point in their submissions. However, that issue is not relevant as that is a requirement under s 38(3) of the 1987 Act. Ms Ammann cannot meet the other requirements in s 38(3), as she has not returned to work and is not currently earning any income.
The substance of this dispute relates to s 38(2) of the 1987 Act; that is whether the applicant has “no current work capacity” and is “likely to continue indefinitely to have no current work capacity”. Section 38(2) does not have a requirement for an application for continuation of weekly payments.
There are some other unusual complications based on statutory construction in this matter, in particular the fact that Ms Ammann cannot currently work due to the nature of her visa. She can only perform voluntary work. This issue was first canvassed at the teleconference, and is apparent in the evidence before me, as referenced in the vocational assessment report and the return to work plan of Dr Saeed.
The parties have provided submissions in regard to this issue. The applicant submits that the definitions of “current work capacity” and “no current work capacity” does not describe voluntary activities, but earnings and paid work. The respondent submits that the fact that the vocational options are described as voluntary or volunteer work is not a reflection of capacity or incapacity for paid work.
There is certainly merit the applicant’s submissions on this point. Both definitions concerning work capacity in Sch 3 to the 1987 Act refer to “work”, either in “the worker’s pre-injury employment” or “in suitable employment”. It is accepted in this matter that Ms Ammann cannot work in her pre-injury employment. The dispute concerns suitable employment.
Suitable employment is defined in s 32A of the 1987 Act. Much of the focus of the evidence in this case (and in most suitable employment disputes) has been on the various considerations under (a) of the definition, and in particular in this case, as discussed, the “nature of the worker’s incapacity and the details provided in medical information”. What this focus has, potentially, overlooked, are the words preceding the matters that one must have regard to, that is “means employment in work for which the worker is currently suited” (emphasis added).
This is a matter of statutory interpretation. Project Blue Sky v ABA [1998] HCA 28 makes it clear that all words must be given meaning:
“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
The words that I have emphasised above are what give me pause about the present matter. Ms Ammann is currently incapable of “employment in work”, taking the normal meaning of those words, due to her visa status. However, that issue is unconnected with her injury.
The definitions of “current work capacity and “no current work capacity” refer to a “present inability arising from the/an injury”. It’s not clear to me why the separate definitions use a different article (“the” for “current work capacity” and “an” for “no work capacity”) and I don’t think any thing turns on it. However, the definitions connect the inability to return to work or work in suitable employment with an injury. These definitions also connect the issue to the definition of suitable employment, which, as discussed above, refers to “employment in work”.
The applicant’s circumstances are unusual. She is unable to generate any income due to her visa status. This would automatically preclude her from satisfying the requirements in s 38(3) as she is incapable of earning more than $202 per week. The definition of suitable employment makes no reference or connection to the injury.
Putting all this together, I am of the view that the reason for the lack of capacity for “employment in work” must be connected to the injury in some way. One gets to the consideration of suitable employment through the definition of “current work capacity” and “no current work capacity”. Both definitions require the consideration of connection to “the/an” injury.
In the present circumstances, one of the reasons Ms Ammann has no current work capacity is that she cannot work in employment in work due to her visa status. That is not the sole determinative question, however.
I believe this approach is consistent with what Deputy President Roche said in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar). He considers the meaning of “employment in work” at [59]:
“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.”
The Deputy President went on to discuss the test to be applied in considering suitable employment (at [60]):
“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.”
Considering only the fact that Ms Ammann cannot perform employment in work due to her visa would be purely academic and not consider the reality of her capacity to work.
However, that does not mean that the voluntary nature of the roles identified, and the medical evidence discussing the option of volunteer work, is irrelevant. It is a factor for consideration when considering “the nature of the worker’s incapacity and details provided in medical information”, particular whether the skills identified in performing suitable work in a volunteer capacity would be relevant to a “real job in employment for which the worker is suited”.
This is, as I understand it, closer to the applicant’s case regarding the issue of volunteer employment. The applicant submits that the approval of Dr Cheng refers to “volunteer employment” only, and is not an expression of the opinion that the applicant is fit to perform paid employment in these pursuits. The certificates of capacity also express a similar restriction regarding to volunteer work only. Likewise, Dr Saeed’s opinions refers to part-time volunteer work.
There is a difference between a capacity to perform volunteer work and a capacity to perform “employment for work”. Employment options comprising only of volunteer work, or in something like a sheltered workshop, would, most likely, be “totally theoretical or academic” per Dewar.
I do not think this fully answers the question, however, as there is the existing complication that Ms Ammann can only perform volunteer work. The medical information does not explicitly differentiate between the consideration of whether Ms Ammann could perform volunteer work, but not employment in work.
What the medical information does consider is Ms Ammann’s general capacity. The applicant’s case is that she has no current work capacity. The applicant’s case finds support in the following evidence:
(a)    the most recent certificate of capacity of Dr Cheng, which downgraded the previous 6 hour per week capacity to nil, with reference to the report of Dr Teoh;
(b)    the medical report of Dr Teoh, who found class 5 for unemployability in the PIRS, with the comment that “she is unfit to work”. I acknowledge that Dr Teoh also states “she is fit to work suitable duties, but not her pre-injury duties”. However, those suitable duties are not identified and whilst she may be capable of performing theoretical suitable duties, Dr Teoh acknowledges that Ms Ammann tried to work in babysitting “but she was overwhelmed with anxiety symptoms”. I prefer his conclusion that she is unfit to work;
(c)    the report of Dr Anderson of 30 May 2022, where he amends his earlier opinion in regard to capacity, after considering Ms Ammann’s statement. He states, “as usual, a change in facts leads to a change in expert opinion”;
(d)    Ms Ammann’s statement dated 14 April 2022, which explains her issues when she attempted to work in babysitting and her inability to do same, and
(e)    Mr Christofaris’ statement, which also addresses Ms Ammann’s issues with the babysitting role.
The evidence in contraindication to the above is:
(a)    the certificates of capacity that predate the downgrade certificate (which I acknowledge show a capacity for 6 hours for an extensive period of time);
(b)    the vocational assessment report of Resilia, and
(c)    Dr Saeed, who supports some voluntary work, but those reports are quite old and predate Ms Ammann’s attempt to return to work as a babysitter.

The applicant raised issue with the weight that I could give to the vocational assessment report, questioning the academic and vocational qualifications of Ms Warhurst. The applicant also noted the single contact Ms Warhurst had with Ms Ammann. There is some weight to this submission. The respondent has explained Ms Warhurst’s academic qualifications, although this is approaching evidence from the bar table. I don’t doubt it is correct and very little turns on the actual strength of Ms Warhurst’s qualifications. The fact is the evidence is not particularly strong in light of the contradicting evidence provided by medical experts.
The test in s 32A requires one to consider the “nature of the incapacity and the details provided in medical information”. I have my doubts that a vocational assessment report and labour market analysis could properly be considered medical information in all circumstances. Certainly the contact with would-be employers is, as is often the case in such matters, circumspect.
I do not think that I can give the report no weight, and the information is at times useful. This is the standard kind of vocational evidence provided in work capacity decisions, and is critical to considering appropriate suitable employment options. Without such evidence insurers and the Personal Injury Commission would be left in the dark as to the kind of “suitable employment” that might be suited to an injured worker. However, purportedly providing services to a worker “for the purposes of recovery” and then using the evidence gathered to reduce or remove an entitlement is concerning. Likewise, the weight that can be given to a vocational assessment report in terms of considering medical restrictions placed on a worker is limited. I prefer to be guided by a worker’s treating team and the independent medical experts who have assessed her.
The medical information in this matter overwhelmingly supports a finding that Ms Ammann has no current work capacity, and this incapacity is likely to continue indefinitely. Accordingly, Ms Ammann satisfies the criteria for ongoing weekly payments in s 38(2) of the 1987 Act, and is entitled to an award in that regard.

ORDERS

The applicant has no current work capacity and is likely to continue indefinitely to have no current work capacity.
The respondent is to pay the applicant weekly compensation at the rate of $1072 per week pursuant to s 38 of the 1987 Act from 18 April 2022 to date and continuing.
The above amount is to be indexed from time to time in accordance with the legislation.

[2022] NSWPIC 443

8 August 2022