Carrington v Secretary, Department of Education
[2021] NSWPIC 114
•11 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Carrington v Secretary, Department of Education [2021] NSWPIC 114 |
| APPLICANT: | Julie Annette Carrington |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Mr John Isaksen |
| DATE OF DECISION: | 11 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation for partial incapacity as a result of injury to right ankle, right shoulder and consequential condition affecting lumbar spine; whether the worker was an ‘existing recipient of weekly payments’ for purposes of calculating her entitlements to weekly payments; reference to Kilic v Kmart Australia P/L and Soares v Maxitherm Boilers P/L; Held – worker had a partial incapacity for work and entitled to weekly payments; worker was not an existing recipient of weekly payments of compensation immediately before 17 September 2012 or 1 October 2012; award of weekly payments to worker pursuant to section 37 of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant had a partial incapacity for work as a result of her injury from 1 January 2014 to 28 January 2016. |
| ORDERS MADE | 1. The respondent is to pay weekly payments of compensation to the applicant pursuant to section 37 of the Workers Compensation Act 1987 as follows: (a) $325 per week from 1 January 2014 to 31 March 2014 pursuant to section 37 (3) of the Workers Compensation Act 1987; (b) $331 per week from 1 April 2014 to 30 September 2014 pursuant to section 37 (3) of the Workers Compensation Act 1987; (c) $334 per week from 1 October 2014 to 29 January 2015 pursuant to section 37 (3) of the Workers Compensation Act 1987; (d) $585 per week from 30 January 2015 to 31 March 2015 pursuant to section 37 (2) of the Workers Compensation Act 1987; (e) $590 per week from 1 April 2015 to 30 September 2015 pursuant to section 37 (2) of the Workers Compensation Act 1987, and (f) $597 per week from 1 October 2015 to 28 January 2016 pursuant to section 37 (2) of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Julie Annette Carrington, sustained an injury on 20 June 2012 to her right shoulder and right ankle while employed with the respondent, the Department of Education when she tripped in the car park of Sydney Technical High School while on the way to her car.
The applicant was employed by the respondent as a high school science teacher.
The respondent admitted liability for this injury. Two separate Lists of Payments which are in evidence record that the applicant was paid intermittent payments of weekly compensation from 21 June 2012 to 19 September 2013. The respondent also met the cost of two operations which the applicant undergone:
(a) An arthroscopy, debridement and ligament reconstruction of the right ankle performed by Dr Sullivan on 26 March 2013, and
(b) An arthroscopic right rotator cuff repair performed by Dr Goldberg on 5 August 2013.
In October 2017 the applicant and respondent entered into a Complying Agreement whereby the applicant was paid a lump sum benefit pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) for 18% permanent impairment for the injury to the right shoulder and right lower extremity and a consequential condition affecting the lumbar spine.
The applicant returned to some teaching work in the latter part of 2013 following the surgery to her right shoulder. The applicant then took sabbatical leave during 2014. The applicant has worked restricted hours since the beginning of the school year in 2015.
The applicant claims weekly payments of compensation from 22 June 2012 to 14 December 2018. The applicant has set out her claim in detail in submissions filed by her counsel,
Mr Stanton, on 18 March 2021 and 22 March 2021.Alllianz, on behalf of the respondent, issued a dispute notice dated 19 November 2020, wherein it disputed any further entitlements to weekly payments of compensation to those that had already been paid to the applicant, on the grounds that the applicant has been fit for her pre-injury duties and pre-injury hours since February 2014. The respondent also disputed the applicant’s claim on the grounds that the applicant had not been compliant with her obligations to return to work during 2014.
There is also a dispute between the parties as to the legislative provisions which apply to the calculation of weekly payments of compensation in the event that the applicant is successful in this dispute, given that she sustained injury on 20 June 2012 and there were significant legislative amendments to the weekly payments to be made to injured workers from 1 October 2012.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether the applicant has had any partial incapacity for work as a result of her injury since February 2014, and the extent of any such partial incapacity (sections 32A, 33 and 37 of the 1987 Act, and sections 36 and 40 of the 1987 Act (preserved));
(b) Whether the applicant was an ‘existing recipient of weekly payments’ before the commencement of weekly payments amendments on 1 October 2012 (Clause 1 of Part 19H of Schedule 6 of the 1987 Act) or 17 September 2012 (Clause 1 of Part 19I of Schedule 6 of the 1987 Act), and
(c) The relevant rates of weekly payments of compensation to be paid to the applicant, depending on whether the applicant was an ‘existing recipient of weekly payments’ and/or the applicant was the subject of a work capacity decision on 21 June 2013 (clauses 17 and 22 of Schedule 8 of the Workers Compensation Regulations 2016 (the 2016 Regulations)).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 25 March 2021. 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.
Mr Stanton appeared for the applicant, instructed by Ms Hanna. Mr Adhikary appeared for the respondent, instructed by Mr Elder and Ms Shivaji.
The hearing was conducted by telephone in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
The hearing could not be completed within the time allocated for the conference and hearing. Directions were made which allowed the respondent further time to file and serve evidence in response to a further statement of the applicant dated 4 March 2021, which was admitted into evidence.
There were also directions made for the filing and serving by both parties of the applicant’s pay advices, which were needed to determine the issue of whether the applicant was an ‘existing recipient of weekly payments’, and for submissions from both parties as to whether the applicant was entitled to weekly payments of compensation after the payment of 130 weeks of weekly benefits.
The applicant was also given the benefit of a reply to the respondent’s submissions, which were not completed until after 5.00pm on 25 March 2021.
The applicant discontinued her claim for weekly payments of compensation pursuant to section 38 of the 1987 Act in submissions filed on her behalf on 27 April 2021.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 8 March 2021 (which included a full copy of the ARD and attached documents);
(d) Application to Admit Late Documents filed by the applicant on 18 March 2021;
(e) Application to Admit Late Documents filed by the applicant on 29 March 2021;
(f) Application to Admit Late Documents filed by the respondent on 9 April 2021, and
(g) Application to Admit Late Documents filed by the respondent on 22 April 2021.
Written submissions were filed by the applicant on 18 March 2021, 22 March 2021, and 27 April 2021 in response to directions made in the course of this dispute.
Written submissions were filed by the respondent on 18 March 2021, 9 April 2021 and 22 April 2021 in response to directions made in the course of this dispute.
Oral Evidence
There was no application to adduce oral evidence or to cross examine any witnesses who have made statements, and which have been admitted into evidence.
The applicant’s evidence
The applicant has provided statements dated 16 December 2020 and 4 March 2021.
The applicant states that she was off work for a few months following the surgery to her right ankle in March 2013, but then found work to be too difficult and took some long service leave.
The applicant states that she had no capacity for work for around six weeks after her right shoulder surgery in August 2013, but again took long service leave when her case manager was insisting the applicant return to work despite the applicant continuing to experience pain.
The applicant states that she then returned to her normal hours and usual duties with restrictions on her capacity to lift and walk but she found it extremely difficult to perform her full teaching load. She states that she was continuing to experience pain and discomfort in her right shoulder and right ankle.
The applicant states that she was due for her year of sabbatical leave in 2014, but did not have to take that leave that year. She states that she chose to take that leave because she knew she could not return to work with her injuries.
The applicant states that she returned to work in 2015. She states that she had asked “for 2 days part time leave without pay per week for 2015”, but was directed by the principal, Jacqueline Lyons, to work five days per fortnight.
The applicant states that she continued to have treatment for her right shoulder and right ankle during 2015, and had three cortisone injections in her right shoulder during that year. She states that her right shoulder was still frozen by the end of 2015.
The applicant states that during 2015 she worked in ‘lab 44’ but had one lesson per fortnight in ‘room 2’, where the overhead projector was broken. She states that there was a tablet available for use, but she found it difficult to operate.
The applicant states that when she was not in lab 44 she had to use her non-dominant left hand to write on the whiteboard, which made her writing very difficult to read. She states that eventually an agreement was reached for her to return to work in lab 44 for all five days of work each fortnight.
The applicant states that she tried to use a microscope camera but it was heavy to carry to other rooms.
The applicant states that during 2016 she was directed to work seven days per fortnight. She states that she came home in pain and exhausted by the end of the week.
The applicant states that at the end of 2016 she was able to reach agreement with the principal to work six days per fortnight during 2017. She states that she found that one day less each fortnight made a big difference to her injuries. She states that the extra day off allowed her to rest enough to return to work in a better condition.
The applicant states that she has continued to work for three days per week from 2017 onwards. She states that she cannot work five days a week due to pain from her injuries. She states that some days her pain is worse depending on how much standing she has done and how much marking and typing she has done.
The applicant states that about 60% of her work day involves teaching classes, which includes walking around the laboratory to supervise lessons. There is also playground duty twice per fortnight and supervision of excursions and sporting events. The applicant states that 40% of the work day involves preparation of lessons, which includes typing, but that there is extra work done at home with the marking of schoolwork. This extra work sometimes includes 150 exam scripts to mark.
The applicant states that all of these activities impact her right hand side where she underwent surgery. She states that she simply cannot work more than six days per fortnight as her injuries start to cause her too much pain and she requires rest.
The evidence of Deborah Noyes
A statement has been provided by Deborah Noyes dated 30 March 2021, in response to the further statement of the applicant dated 4 March 2021, which was allowed into evidence as a late document.
Ms Noyes states that she has been the Head of the Science Faculty at Sydney Technical High School at least since the applicant sustained her injury in June 2012. She states that the applicant is one of the teachers at the school who is managed by Ms Noyes.
Ms Noyes states that the applicant’s estimate that 60% of her work day involves teaching classes, which includes walking around the laboratory to supervise lessons, is fairly accurate. She states that she is not certain if the applicant would spend 40% of a work day in the preparation of lessons given the applicant has 40 years of teaching experience. Ms Noyes states that the marking of exams only occurs once a term. She states that most teachers would spend at least one hour a day undertaking unpaid school work.
Ms Noyes states that the applicant has been rostered on a small and flat area for playground duty, known as the passive area. She states that the applicant would only be required to supervise sporting events on the days that she is rostered to work. Ms Noyes states that she has always said to the applicant that if the applicant does not feel well enough to go on a school excursion then she does not have to go.
Ms Noyes states that when the applicant returned to work in 2015 her duties were modified and adjusted. She states that she has never asked or expected the applicant to do anything that might aggravate her injuries.
Ms Noyes states that the applicant insisted she work from ‘lab 44’ and this request was granted. She states that the applicant only conducted two lessons over a fortnight in another room before the applicant complained and lessons in that room ceased.
Ms Noyes states that the applicant complained about an overhead projector which was not working properly, so that a mini data projector was purchased for her, but the applicant did not want to use it. Ms Noyes also states that funds were allocated to the applicant to purchase an ipad for her exclusive use, so that the applicant did not need to use an overhead projector, but it was never purchased by the applicant.
Ms Noyes states that staff at the school do not use overhead projectors and that it has been at least 10 years that she had used one due to changes in technology.
Ms Noyes states that the microscope camera would weight no more than a ladies handbag. She states: “In any case, Julie has been teaching out of a lab, apart from a couple of lessons in room 2, since she resumed work in 2015.”
The medical evidence
The applicant’s general practitioner, Dr Khan, certified the applicant as having no current work capacity following her right ankle surgery in March 2013, until 6 June 2013. Dr Khan then issued Certificates of Capacity which certified the applicant as being able to work eight hours a day for five days per week with a standing tolerance of 10 to 15 minutes and a 2kg limit on lifting.
Dr Khan certified the applicant as having no current work capacity following her right shoulder surgery in August 2013, until 20 September 2013. Dr Khan then issued Certificates of Capacity until 20 February 2014 which certified the applicant as being able to work eight hours a day for five days per week with a 2kg limit on lifting and no lifting above shoulder height.
On 21 February 2014 Dr Khan issued a Certificate of Capacity which certified the applicant as being fit for pre-injury duties.
There are several reports from Dr Goldberg which are in evidence. In a report to Pinnacle Rehab dated 10 February 2014, Dr Goldberg writes:
“There is no place for a functional assessment at this point in time - Mrs Carrington is unable to lift more than 2kg or do any repetitive or overhead activity.
It is therefore my recommendation that you delay the functional assessment until the patient has recovered from surgery.”
Dr Goldberg reports to Dr Khan two days later that the applicant is getting pain and limited movement in the right shoulder due to post-operative capsulitis.
In a report dated 7 April 2014, Dr Goldberg writes that the applicant’s right shoulder is improving and the capsulitis is settling, but that he does not want the applicant to do any repetitive or overhead work.
In a report dated 19 August 2015, Dr Goldberg writes that the insurance company has stopped physiotherapy and refused to provide an overhead projector. He writes that the applicant’s right shoulder will not improve if she has to write on a blackboard in the overhead position.
The final report in evidence from Dr Goldberg is dated 20 June 2016. He writes that over the years since the applicant’s surgery she has had occasional episodes of inflammation, mainly due to having to use a blackboard. He records that the movements of the applicant’s shoulder were fairly good but not full and her power was excellent.
Dr Bodel, orthopaedic surgeon, has provided reports at the request of the applicant’s solicitors dated 3 October 2014 and 10 May 2017.
The first report from Dr Bodel is provided while the applicant is on sabbatical leave. Dr Bodel records restriction of movement in both the right shoulder and right ankle. He records that the applicant plans to return to her normal duties as a science teacher in January 2015, notes that she is 57 years of age, and opines that the applicant “should be able to continue in work until retirement age.”
55.The second report from Dr Bodel is provided after the applicant has been doing part time work for over two years. Dr Bodel records that during 2015 the applicant’s symptoms deteriorated but that she was able to get modifications to her work conditions.
Dr Bodel records that the applicant is now working six days per fortnight with modifications of being located in the one teaching room and being provided with an overhead projector.
Dr Bodel again finds restriction of movement in the right shoulder and right ankle. He finds impingement and weakness in the right shoulder.
Dr Bodel opines:
“This lady's earning capacity has been compromised by the effects of injury.
She is back at work and this is commendable but she is struggling and cannot do her pre-injury level of work because of her injuries.”
Dr Bodel assessed the applicant as having 19% permanent impairment, made up of 8% whole person impairment for the right shoulder, 7% whole person impairment for the lumbar spine, 4% whole person impairment for the right ankle and subtalar joint, and 1% whole person impairment for scarring.
The respondent agreed in October 2017 that the applicant had 18% permanent impairment resulting from the injury sustained on 20 June 2017.
Dr Mulvaney has provided reports dated 7 November 2018 and 2 October 2019, wherein she writes in both reports that she has been the applicant’s general practitioner for over three years and is fully versed with the applicant’s injuries. Dr Mulvaney writes of the applicant in both reports:
“She is physically capable to work 3 days per week. I think she would struggle with working longer than this due to her going impairments.”
Simone Cox, a rehabilitation consultant with Pinnacle Rehab, records in a report dated 12 December 2013 that the applicant had returned to work on 8 November 2013, but that she had to perform an increased amount of marking and writing of reports. Ms Cox records that the applicant was not completing full weeks of work and was taking personal leave as the applicant had struggled with these tasks.
Ms Cox writes in a further report dated 21 February 2014 that the applicant’s nominated treating doctor confirmed at a medical case conference conducted on 20 February 2014 that the applicant had functional capacity to fulfil her pre-injury duties, and the applicant confirmed that this was correct.
FINDINGS AND REASONS
Whether the applicant has had an incapacity for work
Mr Stanton for the applicant submits that the applicant provides details in her second statement dated 4 March 2021 of the difficulties she was having in performing her full duties for a full working week, and that this is supported by Dr Bodel’s opinion in 2017 that the applicant was struggling at work. He submits that the Commission would be satisfied that the applicant had an ongoing incapacity when the opinions of Dr Bodel and Dr Goldberg are considered, and the respondent has adduced no specialist medical opinion evidence on incapacity at all.
Mr Stanton submits that the applicant’s actual earnings should be a full and correct measure of the applicant’s capacity to earn.
Mr Adhikary for the respondent submits that the applicant has no entitlement to weekly payments of compensation for any partial incapacity for work from the beginning of 2014 onwards because her general practitioner had certified the applicant as fit for her pre-injury duties on 21 February 2014, and this is confirmed in the last report from Ms Cox from Pinnacle Rehab.
Mr Adhikary submits that although Dr Goldberg records some difficulties which the applicant was having at work in 2015 and 2016 in having to write on the whiteboard rather than being able to use an overhead projector, he did not certify or opine that the applicant could only undertake part time work.
Mr Adhikary refers to the evidence of Ms Noyes and submits that the respondent has accommodated the applicant’s injuries by way of rostering, allocation of duties and provision of equipment and assistance.
Mr Adhikary submits that that the reduction in the applicant’s work hours is based upon the applicant’s own subjective view of her capacity and it is not for the applicant to decide the extent of her capacity for work but a matter for medical opinion. He refers to Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 (Figueira), wherein DP Roche said at [38]:
“…a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including the medical evidence, and make an assessment based on that evidence.”
The applicant sustained a serious injury to two separate parts of her body on 20 June 2012. She sustained a ligament injury to her right ankle, which required surgery. Dr Bodel found restriction of movement in the right ankle on the two occasions when he examined her in 2014 and 2017.
The applicant also sustained a rotator cuff tear to the right shoulder, which required surgery. The applicant states that she had ongoing problems with her right shoulder after that surgery. Dr Goldberg records in 2014 and 2015 that the applicant developed capsulitis following her surgery. Dr Bodel found restriction of movement in the right shoulder on the two occasions he examined her in 2014 and 2017, and found impingement and weakness in the right shoulder on his examination of the applicant in 2017.
The applicant also has ongoing aching and pain in her lower back, which the respondent accepted as a consequence of her injury, by the inclusion of that part of body in an agreement made with the applicant in October 2017 that she has 18% permanent impairment as a result of the injury sustained on 20 June 2012.
The respondent relies on the applicant’s clearance to undertake her pre-injury duties provided by Dr Khan in early 2014, and which Ms Cox records as being confirmed by the applicant herself in the final report from Ms Cox dated 21 February 2014. There is also the opinion from Dr Bodel in October 2014, while the applicant is on sabbatical leave, that the applicant “should be able to continue in work until retirement age”, with no restrictions being placed by Dr Bodel at that time on the applicant’s capacity to return to teaching work.
However, despite the optimism expressed by Dr Khan and Dr Bodel in 2014, it is apparent from the reports from Dr Goldberg in that same year and in 2015 that the applicant was having significant ongoing problems with her right shoulder.
Mr Adhikary submits that the problems identified by Dr Goldberg do not equate to any limitation in the applicant’s capacity to work full time as a teacher. However, I consider the difficulties which the applicant was having in being able to return to full time work has to be seen in a wider context than just difficulties the she was having in not being able to use an overhead projector, which is the main concern recorded by Dr Goldberg in the reports he provides between 2014 and 2016.
There are differences in some of the evidence provided by the applicant and Ms Noyes. The applicant does not state how long she was required to work in ‘room 2’ but the indication she gives is that it was for some time, whereas Ms Noyes states that it was only for two lessons over a fortnight before the applicant returned to ‘lab 44.’ There is also a difference in each witnesses’ evidence as to whether overhead projectors were used at all at the school.
However, Ms Noyes agrees that about 60% of the applicant’s work day involves teaching, which in turn requires the applicant to walk around the class in supervision.
Ms Noyes agrees that the applicant undertook playground duty, and attended excursions and sporting events if those events were conducted on the days that the applicant was working.
Ms Noyes queries if 40% of a work day is required for lesson preparation and how much time is required for additional work to be undertaken at home, particularly as the applicant has over 40 years of teaching experience, but concedes that a certain amount of lesson preparation is required. Ms Noyes estimates that most teachers would spend at least one hour a day undertaking unpaid school work. I would accept the applicant’s evidence that teaching work does involve some writing on the white board and on other papers and documents.
It is reasonable to accept from the findings on examination made by Dr Bodel in 2014 and 2017 that the applicant would have an increase in pain in her right leg when walking or standing for extended periods of time. It is also reasonable to accept that given the ongoing problems that the applicant was having with her right shoulder between 2014 and 2016 as recorded by Dr Goldberg, and also the restrictions in the use of the right shoulder recorded by Dr Bodel, the applicant would have an increase in pain in her right shoulder when undertaking writing and typing, especially on a prolonged basis.
Unfortunately, there is no detailed report from any expert from the time the applicant returned to work at the beginning of 2015 until the middle of 2017 which would provide assistance in determining the extent of the applicant’s incapacity for work during this time. However, Dr Bodel had the benefit of seeing the applicant in October 2014 when the applicant had not returned to work, and then in May 2017 when the applicant had been back working for two and a half years. When Dr Bodel sees the applicant again in May 2017, he accepts that the applicant has been struggling with her work as a teacher due to her injuries.
There is also the opinion of Dr Mulvaney, who has been the applicant’s general practitioner since 2015, that the applicant would struggle to do more than three days of work per week. No detailed explanation is provided by Dr Mulvaney for that opinion, but Dr Mulvaney has had the benefit of reviewing the applicant’s conditions over those years.
I accept from the applicant’s own evidence of the work she has undertaken since returning to work in 2015, and which is not materially disputed by the evidence of Ms Noyes, along with the records made by Dr Goldberg and the opinions of Dr Bodel and Dr Mulvaney, that the applicant remained partially incapacitated for work from 2015 to the extent that she was not able to undertake a full working week as a teacher.
I also accept from the applicant’s evidence and the reports from Dr Goldberg that the applicant had a partial incapacity for work during 2014. I accept the opinion of Dr Goldberg in February 2014 that the applicant had not recovered from the surgery that she underwent in August 2013 and there remained restrictions on her capacity for work. Dr Goldberg was in the best position at that time as the applicant’s treating specialist to provide opinions of the applicant’s ongoing difficulties with her right shoulder. Despite the optimism recorded by
Dr Bodel later that same year of the applicant’s ability to return to work, he also found the applicant to have ongoing restrictions in the use of her right shoulder.
I acknowledge the submission made by Mr Adhikary that it is not for the applicant to decide what are her appropriate hours of work each week and his reference to what was said in Figueira. However, it is not just the applicant’s evidence supporting a claim of partial incapacity. I have set out the medical evidence which supports such a finding being made beyond February 2014.
The extent of the applicant’s partial incapacity for work and the weekly payments of compensation that are awarded therefrom now needs to be determined, but before that is done it is necessary to determine what relevant sections of the 1987 Act are to apply to an award of weekly payments of compensation to the applicant.
The determination and calculation of the weekly payments of compensation to be awarded to the applicant
There is an issue in this dispute as to when the amendments that were made to weekly payments of compensation in 2012 apply to the applicant.
The applicant sustained injury on 20 June 2012. There are two Lists of Payments in evidence, the first list created on 2 June 2014 and the second list created on 9 April 2020. Both Lists record the applicant first receiving the benefit of a weekly payment of compensation on 21 June 2012. Intermittent payments of weekly compensation are then recorded as being paid to the applicant until 19 September 2013.
Amendments to the weekly payments to be made to injured workers commenced on 1 October 2012, being the date of commencement of Schedule 1 of the Workers Compensation Legislation Amendment Act 2012.
In Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 (Kilic), DP Roche identified at [41] “at least three potential categories of worker/claimant, with multiple potential dates for the commencement or application of the amendments” to weekly payments of compensation:
(a) “…workers who claim on or after 1 October 2012” [at 41];
(b) “…workers who are existing recipients of weekly compensation, that is, injured workers who are in receipt of weekly payments of compensation immediately before 1 October 2012” [at 42];
(c) “…those workers who have claimed before 1 October 2012 and whose claims may have been paid briefly, and then denied, or whose claims have never been paid” [at 44].
An ‘existing recipient of weekly payments’ is defined in Clause 1 of Part 19H of Schedule 6 of the 1987 Act as:
“…an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.”
However, some of Part 19H of Schedule 6 of the 1987 Act was amended by Part 19I of Schedule 6 by the Workers Compensation Amendment Act 2015, which included a revision of the definition of ‘existing recipient of weekly payments’ to:
“…an injured worker who was in receipt of weekly payments of compensation in respect of the injury immediately before 17 September 2012.”
The first List of Payments created on 2 June 2014 records no weekly payments made to the applicant between 8 July 2012 and 30 October 2012. The second List of Payments created on 9 April 2020 records a payment of $333 on 17 September 2012 (after the previous payment is recorded as being made on 6 July 2012), and a further payment of $333 between 16 October 2012 and 19 October 2012.
There are also two schedules of the applicant’s ‘Leave History’ in evidence. The first schedule created on 27 July 2017, and which is in the Reply, identifies intermittent dates of leave from 21 June 2012 to 18 December 2012 with the abbreviation ‘ACCFP.’ The second schedule created on 25 July 2017, and which is in the Application to Admit Late Documents filed by the respondent on 9 April 2021, identifies intermittent dates of leave from 21 June 2012 to 31 October 2012 with the abbreviation ‘Acc/WrkCmp.’
The respondent has not provided any evidence to explain what the abbreviations in those two schedules of ‘Leave History’ might refer to, despite a direction I made at the conclusion of the hearing on 25 March 2021 which allowed the respondent to provide such evidence.
There are also copies of the applicant’s fortnightly pay advices from 7 June 2012 to 20 December 2012 in an Application to Admit Late Documents filed by the applicant on 29 March 2021. However, none of those advices refer to the payment of any workers compensation benefits during this period, so that those documents are no assistance in determining when the applicant was actually paid weekly payments of compensation.
Mr Stanton submits that it is immaterial whether the relevant date for determining whether the applicant was an ‘existing recipient of weekly payments’ was 17 September 2012 or 1 October 2012, because there is no evidence that the applicant was in receipt of weekly payments of compensation immediately before either date. The best the respondent can establish is that a payment was made on 17 September 2012 (from the second List of Payments), but not immediately before 17 September 2012.
Mr Adhikary submits that the payment of a weekly benefit on 17 September 2017 at a time which was very close to 1 October 2012 renders the applicant as being an existing recipient of weekly payments. He submits that the interlude of 14 days between 17 September 2017 and 1 October 2017 is of no moment.
Counsel for both parties referred to the decision of Arbitrator Capel in Soares v Maxitherm Boilers Pty Ltd [2013] NSWWCC 425 (Soares) where Arbitrator Capel said at [82-84]:
“82. I also believe that the words “immediately before” can permit an interval as suggested by Emmett J in Macquarie Health. If it was the Parliament’s intention that the words “immediately before” meant that there was no lapse of time, delay, intervening period or space before 1 October 2012 in accordance with some of the terms of the Macquarie Dictionary definition, the draftsmen of the 1987 Act could have easily substituted the words “immediately before” with “the day before”, being the closest period prior to 1 October 2012, or could have also used words such as “on”, or “at the time of”, to quote Arbitrator Sweeney in Tan, but such words in my view do not connote any period before 1 October 2012. This interpretation of the words “immediately before” is too narrow and seems “unreasonable or unnatural” (Hesami).
83. Having reviewed the scant case law, I am still of the view that the term “immediately before” can be interpreted as a period of time very close to 1 October 2012 or a reasonably short period 1 October 2012 as suggested by Kearney J in Lozios. Further, for a worker to be an existing recipient of weekly payments, he or she must have been in receipt of weekly payments “closely” or “in the vicinity” of 1 October 2012.
84. It is conceivable that the words have the potential to have a different meaning in the context of a worker who has only received weekly compensation for a few weeks prior to 1 October 2012 and a worker who has received weekly payments of compensation for a number of years, as in the applicant’s case.”
Mr Stanton did acknowledge another arbitral decision of Arbitrator Phillips in McAdam v Kororo Public School P&C Association [2013] NSWWCC 444 (McAdam), where Arbitrator Phillips considered that an interval of 19 days between when the worker was last paid weekly payments of compensation and 1 October 2012 was close and in the vicinity of 1 October 2012, and found that the worker was an existing recipient of weekly payments. However, in that dispute the worker had been in receipt of weekly payments for about four years before the 2012 amendments. Arbitrator Phillips said at [34]:
“…However, whatever the merits of such an amendment, one has to accept that the words “immediately before” were intended to ameliorate the effects of termination of such benefits on recipients of weekly benefits, particularly those who had been in receipt of such benefits for a long period of time. One has to work out what would be a reasonable period of time in order to assess what the expression “immediately before” means. This has to be done on a case-by-case basis. One cannot select an arbitrary period of time being one day, one week, one month or three months. One has to consider the full circumstances of the applicant in order to ascertain whether such a person fits within the definition on an “existing recipient of weekly payments.”
Mr Adhikary submits that what is likely to have occurred in the months following the injury is that there was an internal arrangement whereby the employer paid salary to the applicant as workers compensation benefits and then recovered those payments from the insurer. He submits that the applicant was “clearly not working during this period.”
The applicant does not provide her own evidence as to whether she continued to work in the months immediately following her injury on 20 June 2012.
The clinical notes from Dr Khan indicate that the applicant was working during these months. Dr Khan records on 30 July 2012 that a case conference was conducted with “rehab staff and patient” and notes: “Currently on Suitable duty.” Dr Khan records on 20 August 2012: “Unable to walk on uneven surface. No playground duty.” I find it reasonable to infer from those notes that the applicant was continuing to work as a teacher but with some restrictions.
The final report from Ms Cox dated 21 February 2014 contains a history of “Workplace Rehabilitation Intervention” and refers to three Return to Work Plans prepared between 30 July 2012 and 4 October 2012. Those documents are not in evidence but there is a record that on 30 July 2012 “that the Return to Work Plan 1 was appropriate with an anticipated return to pre injury duties within eight weeks.” These records also provide an inference that the applicant was working during these months but with some restrictions.
The two schedules of the applicant’s ‘Leave History’ only refer to a few days of leave taken by the applicant between 20 June 2012 and 1 October 2012. I accept that it is likely that during this period the applicant was paid some form of leave by the employer and that the employer was reimbursed or re-credited by its insurer for those days that the applicant was incapacitated due to her work injury.
However, both the two schedules of the applicant’s ‘Leave History’ and two Lists of Payments support a finding that the applicant was continuing to work after her injury on 20 June 2012 and only had short periods off work due to her injury in the months that followed.
Furthermore, those documents record that there was no payment of weekly compensation for over two months before a payment was made on 17 September 2012, and that the applicant was not paid any weekly payment of compensation for some 13 days between 17 September 2012 and 1 October 2012.
Unlike the situation in McAdam, the applicant had not been a long term recipient of weekly payments at the time amendments to the payment of weekly benefits of compensation came into effect on 1 October 2012. The applicant had only been in receipt of weekly payments for short and intermittent periods following her injury on 20 June 2012.
The course adopted by Arbitrator Capel in Soares, following his consideration of relevant authorities, is appropriate. I do not consider that there were any weekly payments paid to the applicant close to or in the vicinity of a date before 17 September 2012 or 1 October 2012. There is a record of a payment made on 17 September 2012, which is a day when the applicant attended Dr Khan for treatment. However, that payment is not made immediately before 17 September 2012.
I therefore find on a review of the evidence that the applicant was not an existing recipient of weekly payments.
It follows that it is not necessary for me to determine any application of the “transitional amount” provided for by Clause 2 of Part 19H of Schedule 6 of the 1987 Act. Nor is it necessary for me to determine if a letter sent by Allianz to the applicant on 21 June 2013, which reduced her weekly payments to the ‘Transition Rate’, was a work capacity decision.
I accept the submission made by Mr Stanton that the applicant’s additional entitlements to weekly compensation fall to be determined under section 36, 37 and 40 of the 1987 Act (preserved) from 21 June 2012 to 31 December 2012, and under sections 36, 37 and 38 of the 1987 Act from 1 January 2013 onwards.
In his written submissions dated 17 March 2021, Mr Stanton submits that the applicant is seeking additional past weekly compensation payments over the period from 22 June 2012 to 14 December 2018, with credit to be given for payments already made. Mr Stanton prepared a calculation of what those payments should be in written submissions filed on 22 March 2021.
In his written submissions dated 27 April 2021, Mr Stanton discontinued the claim made for weekly payments of compensation pursuant to section 38 of the 1987 Act.
The difficulty that I have with the calculations made by Mr Stanton, which are now restricted to section 37 of the 1987 Act, are that they are based upon a weekly payment for each financial year ending 2013 to 2019 inclusive. That does not present so much of a problem from 1 January 2014 onwards because the applicant took sabbatical leave in 2014 and then returned to five days of work per fortnight throughout 2015. There is a consistency to the applicant’s work arrangements from 1 January 2014, which makes for an easier task in working out the applicant’s economic loss as provided for by the 1987 Act from January 2014 onwards.
I make no criticism of the submissions and calculations made by Mr Stanton in regard to this. The material that he has provided is very helpful in what is a difficult task to resolve.
It is the calculation of what the applicant is entitled to by way of weekly payments for the period from 20 June 2012 to the end of 2013 which is particularly difficult and is not resolved in the calculations made on behalf of the applicant for this period.
The applicant states that she took some long service leave after her right ankle surgery and again in November 2013. There is reference to long service leave taken by the applicant in the ‘Leave History’ statements.
The applicant states that she then returned to normal hours, but the ‘Leave History’ statements record the applicant as having sick leave for some intermittent days until the end of 2013. There is no explanation as to whether that sick leave was due to the applicant’s work injury or for other reasons. Ms Cox records in her report dated 12 December 2013 that the applicant was not completing full weeks of work and was taking personal leave as the applicant had struggled with these tasks.
The calculation made on behalf of the applicant of a loss of $715 per week for the period from 1 July 2013 to 30 June 2014 (being the difference between the applicant’s pre-injury weekly earnings (PIAWE) and 95% of PIAWE) cannot be accurate because there were weeks in the second half of 2013 when the applicant was working, perhaps full time, perhaps less than full time, and this has not been particularised by the applicant.
I appreciate the calculation of weekly benefits during this period is difficult given the passage of time but I cannot award weekly compensation for a period when the hours worked by the applicant and earnings received by her have not been sufficiently disclosed.
I therefore propose to award what amounts to the reinstatement of weekly payments of compensation from 1 January 2014, when it is clear that the applicant was not working because she commenced sabbatical leave.
Mr Stanton has calculated from the List of Payments created on 2 June 2014 that the applicant has been paid 21 weeks and three days in weekly payments of compensation. His calculation from the second List of Payments created on 9 April 2020 is 22 weeks and 1.5 days. Without any other means of resolving this discrepancy, I will accept that the applicant has so far received 22 weeks of weekly payments of compensation.
That allows a further 108 weeks of weekly payments of compensation to be paid to the applicant pursuant to section 37 of the 1987 Act from 1 January 2014 to 28 January 2016.
Mr Stanton submits that that the applicant’s actual earnings should be a full and correct measure of the applicant’s capacity to earn. However, that is of no assistance for the 12 months of 2014 because the applicant did not work as a teacher during 2014 and there is no evidence that she did any other work during that year, but she clearly had a capacity for some employment during that year. It is therefore necessary to determine the amount that the applicant was able to earn in suitable employment in 2014.
I have already observed that there is no detailed report from any expert from around this time which provides assistance in determining the extent of the applicant’s incapacity for work. However, I have accepted the evidence of the applicant, which is supported by the records made by Dr Goldberg, that she was not able to return to full time work as a teacher.
The record made by Ms Cox in her report dated 12 December 2013 that the applicant was not completing full weeks of work and was taking personal leave as the applicant had struggled with these tasks, and the applicant’s own decision to take long service leave following her right shoulder surgery in August 2013, also supports a finding that the applicant could not return to full time teaching work.
I consider that the applicant would have been restricted to three days of work per week as a teacher during 2014 given that she was struggling to work full time as a teacher at the end of 2013 and that Dr Goldberg diagnosed the applicant as having capsulitis during 2014.
The applicant states that at the end of 2014 she requested two days of leave per week but that the principal chose for the applicant to work five days per fortnight. The applicant has outlined various difficulties she experienced in the workplace during 2015 and Dr Bodel records that the applicant’s symptoms deteriorated on her return to work during 2015.
Dr Goldberg continued to treat the applicant for her right shoulder symptoms during 2015 and the applicant had some cortisone injections during that year.Given the difficulties the applicant was continuing to have with her right shoulder during 2015, along with ongoing pain in her right ankle, I consider that three days of teaching work per week during 2015 was the extent of the applicant’s capacity for work during that year. That conclusion is also supported by Dr Mulvaney, who opines that since 2015 the applicant has been physically capable of working three days and would struggle with working any longer.
Mr Stanton has calculated PIAWE at $1,585. No alternative calculation is made by the respondent. Mr Stanton has also made calculations of indexation of PIAWE as provided for by section 82A of the 1987 Act. The respondent has also not disputed those calculations. The finding that I have made that the applicant was able to work three days per week as a teacher during 2014 and 2015 equates to 60% of PIAWE. On that basis, the following calculations can be made of the applicant’s entitlement to weekly payments of compensation from 1 January 2014 to 28 January 2016:
Period PIAWE (as indexed) 80% of PIAWE 60% of PIAWE Loss
1/1/2014 - 31/3/2014 $1,625 $1,300 $975 $325
1/4/2014 – 30/9/2014 $1,655 $1,324 $993 $331
1/10/2014 – 29/1/2015 $1,671 $1,337 $1,003 $334
Period PIAWE (as indexed) 95% of PIAWE 60% of PIAWE Loss
30/1/2015 – 31/3/2015 $1,671 $1,587.50 $1,002.50 $585
1/4/2015 – 30/9/2015 $1,684 $1,600 $1,010 $590
1/10/2015 – 28/1/2016 $1,707 $1,621.50 $1,024.50 $597
I have chosen to use 60% of PIAWE as the benchmark for the applicant’s ability to earn in suitable employment rather than the calculations made by Mr Stanton because, as I have already observed, those calculations are based upon each financial year and are not an accurate calculation of what the applicant’s earnings were during the calendar years of 2014 and 2015.
For instance, Mr Stanton calculates earnings of $828 per week from 1 July 2013 to 30 June 2014 but the applicant did not earn income during the first six months of 2014 because she was on sabbatical leave. Mr Stanton calculates higher earnings in the period from 1 July 2015 to 8 December 2015 but that includes earnings during the first half of 2016 when she was working seven days per fortnight.
I have chosen the end date for the payments pursuant to section 37 (3) of the 1987 Act to be 29 January 2015 because that was the end of the school holidays and I have no other information as to when the applicant commenced to receive earnings from the respondent after she finished her sabbatical leave.
There will therefore be an award in favour of the applicant as follows:
(a) $325 per week from 1 January 2014 to 31 March 2014 pursuant to section 37 (3) of the 1987 Act;
(b) $331 per week from 1 April 2014 to 30 September 2014 pursuant to section 37 (3) of the 1987 Act;
(c) $334 per week from 1 October 2014 to 29 January 2015 pursuant to section 37 (3) of the 1987 Act;
(d) $585 per week from 30 January 2015 to 31 March 2015 pursuant to section 37 (2) of the 1987 Act;
(e) $590 per week from 1 April 2015 to 30 September 2015 pursuant to section 37 (2) of the 1987 Act, and
(f) $597 per week from 1 October 2015 to 28 January 2016 pursuant to section 37 (2) of the 1987 Act.
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