Campos v Genesis Care Pty Ltd
[2021] NSWPIC 226
•5 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Campos v Genesis Care Pty Ltd [2021] NSWPIC 226 |
| APPLICANT: | Michael Campos |
| RESPONDENT: | Genesis Care Pty Ltd |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Ability to earn in suitable employment; employer conceded injury at conciliation conference and worker was examined by a Medical Assessor who determined that his condition had not reached maxium medical improvement; dispute re ability to earn in a short closed period; respondent’s Vocational Assessment Report did not provide sufficient detail to calculate ability to earn; applicant’s method of assessment adopted; Held- award for the applicant. |
| DETERMINATIONS MADE: | The Commission finds: 1. For the period from 13 August 2020 to 13 January 2021, the applicant was able to earn $19.84 per hour in suitable employment; 2. That ability equates to $297.60 per week for 15 hours per week and $328.08 for 12 hours per week; 3. Eighty percent of pre-injury average weekly earnings is $2,230.76, for the whole of the relevant period. The Commission determines: 1. The Application to Resolve a Dispute is amended to claim weekly compensation to 13 January 2021. 2. The respondent is to pay Mr Campos compensation pursuant to s 37 of Workers Compensation Act 1987 at the following rates: (a) $1,926.40 per week from 13 August 2020 to 30 September 2020; (b) $1,933.16 per week from 1 October 2020 to 14 December 2020, and (c) $1,992.68 per week from 15 December 2021 to 13 January 2021. 3. Pursuant to s 322(4) of the Workplace Injury Management and Workers Compensation Act 1998, resolution of the claim for permanent impairment compensation is adjourned until a Medical Assessor has determined that maximum medical improvement has been reached. |
STATEMENT OF REASONS
BACKGROUND
Michael Campos was employed by Genesis Care Pty Limited (Genesis) as a project manager. He claims compensation as a result of a psychological injury deemed to have been suffered on 8 January 2020.
The only outstanding issue for determination is Mr Campos’ entitlement to weekly compensation in the period from 13 August 2020 to 13 January 2021.
PROCEDURE BEFORE THE COMMISSION
The proceedings were listed for conciliation conference and arbitration hearing on 19 March 2021. On that day Genesis conceded that Mr Campos suffered an injury and the parties asked that the matter be referred to a Medical Assessor.
On 6 April 2021, Prof Nicholas Glozier issued a Medical Assessment Certificate in which he said that Mr Campos’ condition had been improving but had not reached maximum medical improvement.
The matter was listed for another telephone conference on 5 May 2021. Genesis accepted liability for Mr Campos’ s 60 expenses. The parties agreed that pre-injury average weekly earnings (PIAWE) were the statutory maximum. They discussed Mr Campos’ entitlement to weekly compensation but were unable to agree on the figure.
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.
The parties agreed to the determination of Mr Campos’ entitlement to weekly compensation without a conference or formal hearing. Submissions were prepared in accordance with orders made at the telephone conference though Mr Campos did not take the opportunity to file submissions in reply.
In the submissions prepared by his counsel, Mr Moffet, Mr Campos sought to limit his claim for weekly compensation to the period to 13 January 2021, noting that his general practitioner had downgraded his capacity from roughly that date. Since the date of the telephone conference, Mr Campos has been assessed as having no current work capacity.
The submissions prepared for Genesis respond to the amended claim. Though no formal application to amend was made, I take it that was the intention of the submissions and have made a formal order making that amendment, so that there are no outstanding aspects of these proceedings, other than a further examination by the Medical Assessor in due course. The parties have liberty to apply by email if they do not agree that the order about amendment is appropriate.
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;
(c) Mr Campos’ Application to Admit Late Documents dated 24 February 2021;
(d) Genesis’ Application to Admit Late Documents dated 12 March 2021;
(e) Medical Assessment Certificate dated 6 April 2021;
(f) Written submissions on behalf of Mr Campos dated 26 May 2021, and
(g) Written submissions on behalf of Genesis dated 16 June 2021.
I have summarised relevant evidence below.
SUBMISSIONS
Mr Moffet of counsel prepared submissions on behalf of Mr Campos. He said that the claim falls with the second entitlement period and s 37 of the Workers Compensation Act 1987 (the 1987 Act). He said that PIAWE was $2,788.46 which exceeds the maximum weekly compensation amount in s 34 of the 1987 Act. He said that the maximum weekly compensation amount was relevantly:
(a) $2,224 per week from 13 August 2020 to 30 September 2020, and
(b) $2,242.40 per week from 1 October 2020 to 31 March 2021.
Mr Moffet said that 80% of PIAWE is $2,230.76.
For the period from 13 August 2020 to 13 January 2021, Mr Campos was certified as having current work capacity but was not working. Mr Moffet said that I therefore must determine the amount Mr Campos is able to earn in suitable employment as defined in s 32 of the 1987 Act. The definition provides:
" ‘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.”
Mr Moffet said that in June 2020, according to his general practitioner, Dr H Johnson, Mr Campos was receiving advice about relaxation and “PTSD” and could not control his lack of sleep. When he was examined by Dr Hong on 9 October 2020, Mr Campos had problems with cognition and had difficulty relaying a coherent history. He was suffering depressed mood, distracted concentration, memory problems, fatigue and loss of confidence. He did not like to leave home.
In the period from 16 November to 15 December 2020, Mr Moffet said that the notes of Mr Campos’ psychologist, Dr W Lax, recorded that he was suffering from depression and flashbacks.
Dr Johnson said that Mr Campos had capacity for some type of employment for 15 hours per week from 17 July 2020 to 15 December 2020 then downgraded his capacity to 12 hours per week from 15 December 2020. A sleeping tablet was prescribed on 17 February 2021. Mr Moffet said that after I made directions for submissions on 5 May 2021, Dr Johnson had reduced Mr Campos’ capacity to zero and a further examination by Dr Hong will be required.
Mr Moffet submitted that in the period from 13 August 2020 to 14 December 2020, Mr Campos was capable of earning only the minimum wage of $19.84 per hour for 15 hours per week. After 15 December 2020 he was fit for only 12 hours per week. The date on which the period was closed was chosen as being half way between the downgrade in capacity and the introduction of the sleeping tablet in February 2021. Mr Moffet calculated the compensation payable in accordance with those submissions.
Ms Blake, solicitor, prepared submissions on behalf of Genesis. She agreed with the calculations of PIAWE and the maximum compensation rate.
With respect to Mr Campos’ ability to earn, Ms Blake submitted that Mr Campos is highly qualified with a range of transferrable skills in the fields of engineering and project management. She said that there were no formal reports from Dr Johnson or Dr Lax so that the only clear evidence of capacity was that in the certificates prepared by Dr Johnson.
Procare Injury Management prepared a Vocational Assessment Report dated 26 June 2020 when Mr Campos was certified fit for 15 hours per week. The author of the report said that suitable employment options were a Senior Project Manager – either in government or with a private client. Mr Campos also said that he would consider work as an office manager. Mr Campos reported that he was “self-studying” Italian and displayed good interpersonal, listening and speaking skills throughout the assessment.
Ms Blake said that, notwithstanding her views on liability and causation, Dr D Miller’s opinion on Mr Campos’ capacity remained probative and that he was fit to work 20 hours per week.
Ms Blake noted that the Medical Assessor said that Mr Campos’ condition was improving and that he no longer met the full criteria for a major depressive disorder but had not reached maximum medical improvement.
On the basis of that evidence, Ms Blake submitted that Mr Campos would be capable to working in a role similar to his pre-injury employment and capable of earning $73.38 per hour for either 15 or 12 hours per week for the relevant periods.
FINDINGS AND REASONS
Evidence
The dispute between the parties is very narrow. It concerns only the amount he would be able to earn in suitable employment for 15 hours per week between 13 August 2020 and 14 December 2020 and 12 hours per week from 15 December 2020 to 13 January 2021.
Mr Campos’ case is that he would only be able to earn the minimum wage but there is no evidence and no submissions as to what he would be able to do.
Dr Hong saw Mr Campos and reported on 9 October 2020. He obtained the history that Mr Campos had tried to study Italian but that he “could not get past page 1.” Mr Campos had attempted another project management course but could not concentrate. Dr Hong said that Mr Campos experienced the following symptoms:
“• Depressed mood
• Inability to enjoy things he would normally enjoy
• Distracted concentration - his mind often wanders back to the work issues
• Memory problems, especially in social settings
• Being easily fatigued
• He felt he has lost confidence in his ability
• Fleeting suicidal thought
• Appetite and weight problem since the subject injury, he comfort-eats and gained 2-3 kg, from too much ‘junk and takeaway’
• He cannot stop thinking and worrying about his former employment, and having nightmares related to the managers
• Disturbed sleep
• He avoids social situations due to his anxieties”
Dr Hong considered that Mr Campos had clear cognitive difficulties and would jump around between different topics. He said:
“Mr Campos is not fit for employment at present. He attended a job interview and could not speak properly. He continues to exhibit significant cognitive and communication difficulties which are a function of his psychological injury.
Mr Campos tried to study Italian and do a project management course and could not proceed and he presented in a similarly impaired manner during my assessment.”
When assessing permanent impairment, Dr Hong said that Mr Campos was severely dysfunctional and assessed him in class 4 under the Psychiatric Impairment Rating Scale for Employability and Adaptation.
Mr Campos’ case with respect to weekly compensation is not based on Dr Hong’s report but rather on the certificates of capacity prepared by his general practitioner, Dr Johnson. The standard form invites comment about a worker’s capacity for employment in respect of a range of physical activities and tolerances. A box labelled “Other (please specify) eg psychological considerations” was not completed on any of the certificates. Dr Johnson certified Mr Campos fit for some work for three hours on five days per week and later four days per week.
The Vocational Assessment Report by Hang Le of Procare Injury Management is dated 26 June 2020 at a time when Mr Campos was certified fit for 15 hours per week. The assessor recorded, after a case conference with Dr Johnson and Mr Campos:
“In review of capacity, Dr Johnson believed that Mr Campos is able to return to some type of work on a part-time basis and provided an upgrade to 5 hours per day, 3 days per week.
Mr Campos would like to return to managerial or higher-level roles, similar to his pre-injury position and stated It is difficult to find part-time work. It was recommended that Mr Campos continue to engage in treatment to build on his capacity and that he would benefit from job seeking education/activities to support with job readiness and prepare
him to return to the workplace.”The assessor noted Mr Campos’ vocational interests:
“Mr Campos reported that he would like to return to a similar position and level that he was working at. He stated that he has extensive experience as a Senior Project Manager and there are several different industries and sectors that this can branch out to including:
1. Senior Project Manager (government or council)
2. Senior Project Manager (client based)
3. Senior Project Manager (port/marine management)
Mr Campos stated that he would consider employment as an Office Manager and has the necessary skills and experience to be successful in this role.
In light of his skills and qualifications in Bachelor of Engineering, the Assessor recommended the role of an Engineer. Mr Campos stated that he has not worked as an Engineer for over 13 years and would be required to complete further studies to be eligible for this role.”
The recommendations at the conclusion of the report were that Mr Campos continue to engage with treatment to “allow him to increase his hours to full time work.” The strategy proposed was:
“Pending further upgrades in capacity, Procare to complete a comprehensive labour market analysis report to confirm the suitability of the vocational options identified in this report.”
Unlike many reports of its kind, the Vocational Assessment Report did not set out the amounts likely to be earned in the proposed employment and, in particular, did not set out the wages expected to be earned by an office manager.
A short Rehabilitation Closure Report dated 1 September 2020 was prepared after Genesis’ insurer terminated weekly compensation on the basis of Dr Miller’s opinion. Under the heading “NTD Approval of Options”, the provider wrote:
“No - At the time of assessment, Mr Campos was certified with 5 hours per day, 3 days per week. Given his experience and skill set, it is recommended that Mr Campos would be able to return to managerial or higher-level roles, similar to his pre-Injury position; however, preliminary research has shown that most of these roles require full-time hours. It is recommended that Mr Campos continue to engage in treatment to maximise his recovery and upgrades and commence job seeking activities to support with job readiness. It was agreed that pending further upgrades, Procare will complete a comprehensive labour market analysis report to confirm the suitability of the vocational options and obtained NTD sign off at this time.”
The report of the Medical Assessor sets out his opinion on the day of the examination and his findings therefore post-date the period of compensation claimed. Prof Glozier recorded Mr Campos’ symptoms when he examined Mr Campos on 6 April 2021:
“His major complaint is of an inability to read and retain written information. He says that he struggles to read more than a page at a time, and may then have to re-read this because he forgets what he has written. He has been buying slimmer books and graphic novels to challenge this and try and improve. He also finds it difficult to follow and recall YouTube videos and TED talks and that these are much more demanding, and is only able to do less complex Sudokus now. He perceives his language skills have been reduced, in part through lack of practice, e.g. Malay and French, but also potentially through poorer focus.”
Prof Glozier set out Mr Campos’ employment history and said:
“He reported a wide range of IT skills and that he had taught himself to become proficient in these areas as well as his civil engineering background.”
When describing Mr Campos’ social activities, Prof Glozier said:
“He has been trying to do some agile project management skill maintenance on the computer but finds it hard to focus on this. He has had recent interviews with employment agencies but he says that these are all over the phone and nothing has eventuated. He suggested these were initially at the behest of Procare before the workers compensation benefits finished last year.”
Determination
In Wollongong Nursing Home Pty Ltd v Dewar[1], Roche DP said:
“After referring to Lawarra Nominees, the Arbitrator said that, to be viewed as ‘suitable employment’, there must be a capacity that is at least ‘potentially able to be realised for financial reward on the labour market’. If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not ‘generally available in the employment market’, I agree.”[2]
And:
“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.”[3]
[1] [2014] NSWWCCPD 55.
[2] At [51].
[3] At [59]-[60].
The Vocational Assessment Report is incomplete and inconclusive and the work required to complete it was apparently never done because the claim was disputed on other evidence. No further information was sought after Genesis conceded that Mr Campos had suffered an injury. At its highest, the report suggests that the work recommended for Mr Campos may not be available as part-time work. That means that it is not real work in the labour market. There is no evidence as to what an office manager may earn.
The report does not have the effect for which Genesis contends and it is at odds with the reports of Dr Hong and the Medical Assessor. Their comments with respect to his ability to concentrate suggest that Mr Campos is not fit to work as a Project Manager or as an Office Manager. Though the Medical Assessment Certificate postdates the relevant period, the medical evidence as a whole shows an ongoing recovery. If Mr Campos’ ability to concentrate was limited at the time he saw the Medical Assessor, I accept that it was compromised in the period for which weekly compensation is in dispute.
It would be inappropriate for me to attempt to estimate what Mr Campos might be able to earn (see Srbinovski v Coles Supermarkets Australia Pty Ltd[4]).
[4] [2015] NSWWCCPD 66.
In those circumstances, the fairest resolution is to adopt Mr Moffet’s submission that at the relevant time Mr Campos was capable of suitable employment which would return the minimum wage. Genesis did not dispute the figure adopted in Mr Moffet’s submissions.
I therefore find:
(a) for the period from 13 August 2020 to 13 January 2021, Mr Campos was able to earn $19.84 per hour in suitable employment;
(b) that ability equates to $297.60 per week for 15 hours per week and $328.08 for 12 hours per week, and
(c) 80% of PIAWE is $2,230.76 for the whole of the relevant period.
Genesis is to pay Mr Campos compensation pursuant to s 37 of the 1987 Act at the following rates:
(a) $1,926.40 per week from 13 August 2020 to 30 September 2020;
(b) $1,933.16 per week from 1 October 2020 to 14 December 2020, and
(c) $1,992.68 per week from 15 December 2021 to 13 January 2021.
Pursuant to s 322(4) of the Workplace Injury Management and Workers Compensation Act 1998, resolution of the claim for permanent impairment compensation is adjourned until a Medical Assessor has determined that maximum medical improvement has been reached.
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