Chetty v Trans-West Insurance Brokers (NSW) Pty Ltd
[2023] NSWPIC 639
•10 November 2023
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Chetty v Trans-West Insurance Brokers (NSW) Pty Ltd [2023] NSWPIC 639 |
| APPLICANT: | Natasha Chetty |
| RESPONDENT: | Trans-West Insurance Brokers (NSW) Pty Ltd |
| PRESIDENT’S DELEGATE: | Stephanie Small |
| DATE OF DECISION: | 10 November 2023 |
| CATCHWORDS: | Workers Compensation Act 1987; applicant was an insurance broker/assistant account manager who suffered accepted psychological injury; work capacity decision issued by insurer identified suitable work as a customer service manager; whether the applicant was able to work in suitable employment having regard to section 32A; Held – weight of medical opinion supported the applicant had no current work capacity; work capacity decision set aside; award for the applicant in relation to payment of weekly benefits compensation. |
| ORDERS MADE: | The Commission determines: 1. The Work Capacity Decision dated 28 April 2023 is set aside. 2. The respondent is to pay the applicant weekly compensation benefits from 1 August 2023 to date and continuing at the rate of 80% of PIAWE pursuant to section 37 of the Workers Compensation Act 1987. |
BACKGROUND
The applicant, Ms Natasha Chetty, sustained a psychological injury during her employment as an Insurance Broker / Assistant Account Manager with Trans-West Insurance Brokers (NSW) Pty Ltd (the respondent), deemed to have occurred on 6 February 2023.
Following her injury, Ms Chetty received weekly benefits compensation paid in accordance with sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
On 28 April 2023 the respondent issued a notice under section 43(1) of the 1987 Act and section 80 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice advised that the respondent has made a Work Capacity Decision under sections 43(1)(a), (b), (c) and (d) of the 1987 Act (the WCD).
In the WCD the respondent was of the view that Ms Chetty had a current capacity to work 20 hours per week in suitable employment as a customer service manager. The respondent stated Ms Chetty could earn up to $941.20 per week in this suitable employment, and, as a result Ms Chetty’s entitlement to weekly benefits compensation was to be reduced to $2.80 per week. The WCD came into effect on 1 August 2023.
On 28 August 2023, Ms Chetty’s solicitors requested a review of the WCD. On 8 September 2023 the respondent issued a decision, maintaining the WCD on review.
On 26 September 2023 Ms Chetty lodged an application with the Personal Injury Commission (Commission) challenging the WCD. Ms Chetty seeks an order that she be paid weekly benefits compensation from 1 August 2023 to date and continuing pursuant to section 37 of the 1987 Act. For the reasons set out below it is appropriate that the Commission make such order.
PROCEDURE BEFORE THE COMMISSION
The parties attended a telephone conference before me, as a delegate of the President, on 11 October 2023. Ms Chetty was represented by Ms Nadene Alawie from Law Partners Personal Injury Lawyers. The respondent was represented by Ms Samantha Wrigley from Hicksons Lawyers.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
ISSUE FOR DETERMINATION
The issue in dispute is whether the applicant is able to return to work in suitable employment for 20 hours per week, having regard to the role identified by the respondent in the WCD.
There is no dispute between the parties that Ms Chetty is not able to return to her pre-injury employment.
During the telephone conference the parties stated that they agreed that the pre-injury average weekly earnings (PIAWE) was $993.80. I note that this is not consistent with the PIAWE recorded in the WCD ($1,180.00).
DOCUMENTS
The following documents were in evidence before the Commission and have been taken into account by me in making this determination:
(a) Application for Expedited Assessment, and attachments (the Application);
(b) Reply, and attachments; and
(c) Application to Admit Late Documents (AALD), and attachment (report of Mr Billel Rababi, treating psychologist, dated 26 September 2023), filed by Ms Chetty on 6 October 2023.
EVIDENCE
In a statement dated 8 August 2023, Ms Chetty gave evidence of her psychological injury which developed as a result of bullying and harassment during her employment as an insurance broker. Ms Chetty said that since the injury, she has fluctuated between having no capacity and limited capacity to work. She also said that the insurer encouraged her to increase her hours so she could drive to pick up her daughter from day care. She further said the insurer obtained a new report from a different rehabilitation provider which was not signed off by her nominated treating doctor (NTD). Ms Chetty stated that in late May 2023 she was prescribed psychotropic medication, the dosage of which increased in June 2023 due to a worsening of symptoms. Ms Chetty stated she was certified as completely unfit for work from 24 July 2023 due to an aggravation in symptoms caused by driving past her former workplace and the insurer pressuring her to attend an appointment with an independent medical examiner (IME). Ms Chetty believed that returning to work will aggravate her symptoms as she is barely able to cope with most daily activities (Application, pages 1-9).
Ms Kim Dang, psychologist, provided a report dated 23 March 2023. Ms Dang said Ms Chetty reported a loss of motivation to engage in daily activities, as well as anxiety and avoidance about leaving the house due to living in close proximity to the workplace. Ms Dang provided a provisional diagnosis of generalised anxiety disorder with depressive features (Application, pages 38-39).
The respondent’s rehabilitation provider, Actevate, provided a psychological workplace assessment report dated 28 March 2023. It was noted that, at that time, the NTD Dr Hoang certified Ms Chetty as having capacity for some type of work for 15 hours per week (Reply, page 16). The report recorded that “Dr Hoang agreed at the medical case conference on 27/03/2023, Ms Chetty to have the capacity for some type of work with a new employer to assist with managing her psychological symptoms of anxiety and panic” (Reply, page 17).
On 27 March 2023, Dr Hoang recorded that Ms Chetty was working on her resume and looking for a job on Seek, but had no confidence to go to work (Application, p 146).
On 12 April 2023, Dr Hoang provided written approval to Actevate for Ms Chetty to work in the following vocational options for 20 hours per week: accounts clerk, insurance representative, customer service manager and disabilities service officer (Reply, pages 26-31).
In a clinical note, also dated 12 April 2023, Dr Hoang recorded (original spelling and syntax retained):
“case conference
Trying to manage anxiety
Attend counselling
Advsid diff vocational options
Reading to activate rtw plan
Happy with all options” (Application, page 147).Actevate provided a vocational assessment report dated 17 April 2023 (Reply, pages 32-42). The report noted that Ms Chetty had enrolled in an online course with TAFE to be completed on a self-paced, part-time basis. It was also recorded Ms Chetty appeared to be highly motivated in finding part-time casual employment. The report took a history of Ms Chetty’s prior employment, including as a customer service claims representative and assistant account manager. It was also noted Ms Chetty had qualifications in business administration, financial services and insurance. The report identified the following suitable vocational options: accounts clerk, insurance representative, customer service manager and disabilities service officer. I note that it appears only pages 1-11 of the 42 page report have been filed with the Reply.
Strategic Industry Solutions provided a labour market research report dated 26 April 2023. (Reply, pages 43-72). Following contact with prospective employers, the roles of accounts clerk, insurance representative and customer service manager were found to be suitable options. The report described the role of customer service manager as including planning, administering and reviewing customer services and after-sales services, as well as maintaining sound customer relations. The physical requirements of the role included building good working relationships, providing information to co-workers (by telephone, in writing or in-person), entering information, understanding customer needs and providing quality service. The mental skills included concentration, planning, organisation and communication skills. The role did not require formal qualifications. The prospective employers contacted indicated Ms Chetty would be a suitable candidate for the role.
The clinical records of Dr Hoang indicated that on 1 May 2023, Ms Chetty was coping better, studying and keeping busy (Application, page 148).
In a clinical note from Ms Dang on 9 May 2023, it was recorded that Ms Chetty felt distressed after a phone call with her case manager as she felt pressured to return to work and was stressed about having to attend an IME (Application, page 88).
In a clinical note dated 22 May 2023, Dr Hoang prescribed Ms Chetty with Mirtazapine 15mg (Application, page 148).
In a report dated 24 May 2023, Ms Dang recommended assessment by a psychiatrist to help Ms Chetty manage her anxiety and depression. Ms Dang considered Ms Chetty’s work readiness and stated:
“Ms Chetty continues to report a high level of anxiety and stress regarding her pre-injury employer. Given the circumstances, I do not believe it is realistic or appropriate for her to return to work there and I am of the opinion that she would have a better chance of recovery with another employer.” (Application, page 40).
On 9 June 2023, a clinical note from Dr Hoang recorded Ms Chetty was experiencing sleepiness with Mirtazapine, was still anxious and was not finding counselling helpful. Dr Hoang prescribed Sertraline 50mg (Application, page 150).
On 26 June 2023, Actevate issued a Monthly RTW Progress report. The report noted that:
“Dr Elaine Hoang agreed to upgrade Ms Chetty's certificate of capacity for 24 hours per week to open further employment opportunities within the labour market.
Dr Elaine Hoang highly advised Ms Chetty to commence applying for employment within her current capacity to support her declined level of confidence and perception of self.”(Reply, page 74).
The report also recorded that Ms Chetty had cancelled her job seeking program appointment on 21 June 2023, reporting an ongoing struggle to manage her symptoms. It was noted Ms Chetty had placed her studies on hold as she was lacking the ability to concentrate (Reply, page 75).
From 11 May 2023 to 26 June 2023 Ms Chetty completed a six week job seeking training program with Actevate. She was provided a sign-off with the ability to independently job-seek on 28 June 2023 (Reply, page 83).
On 3 July 2023, Dr Hoang issued a Certificate of Capacity in which she certified Ms Chetty as having capacity for some type of work for 24 hours per week (Application, page 80). In a clinical note on the same date, Dr Hoang noted that Ms Chetty’s depression and anxiety was under control (Application, page 150).
A clinical note from Ms Dang on 10 July 2023 noted Ms Chetty came back from a short trip with her mum and daughter and was feeling optimistic. It was also recorded Ms Chetty had a panic attack when applying for jobs online, and had also hung up on a phone interview due to feeling panicked (Application, page 90).
A clinical note from Dr Hoang on 12 July 2023 recorded a new prescription of Mirtazapine 30mg. The record noted the following (original spelling and syntax retained):
“anxiety, depression
family disputes
support fr family
counselling
teary when walking across old workplace”(Application, page 151).
On 21 July 2023, Dr Gnanamuthu Joseph Vincent, a different GP at Dr Hoang’s practice, issued a Certificate of Capacity in which he certified Ms Chetty as having no current capacity for any work. Under the heading “capacity for activities Dr Vincent commented “waiting for appointment to see psychiatrist” (Application, page 83). A clinical note from Dr Vincent on the same date noted “unable to work has not been working at all since feb”(Application, page 151).
On 25 July 2023 Dr David Kumagaya, consultant psychiatrist qualified by Ms Chetty’s solicitors, examined her via videoconference. The doctor noted that Ms Chetty had commenced a Certificate IV in Mental Health in April 2023 online, on reduced hours, however she had struggled to cope with the demands of the course and was falling behind on her coursework. Dr Kumagaya provided a diagnosis of major depressive disorder with anxious distress. He considered that Ms Chetty’s symptoms had precluded Ms Chetty from being able to return to work “in any capacity” since 6 February 2023. When asked if Ms Chetty would ever engage in gainful employment, the doctor recommended a reassessment in three to six months’ time, following further treatment. The doctor considered the respondent’s vocational assessment report and provided the following opinion:
“I disagree with the vocational assessment report, and the assertion that Ms Chetty has capacity to perform as a Customer Service Manager at 20 hours per week.
It is noted that the role of Customer Service Manager requires mental state stability, intact cognitive functioning, robust stress tolerance, and effective interpersonal functioning.
Ms Chetty, currently, does not present with such capacity. She continues to experience prominent depressive and anxious symptoms, and significant global psychosocial impairments. The fragility of her mental state is evidenced by her ongoing need for regular counselling with her general practitioner, and psychological therapy with her psychologist. She is currently awaiting reviews by a psychiatrist for re-consideration of psychotropic medications.
Ms Chetty’s major depressive disorder with anxious distress is of such severity, that she is currently fully incapacitated for any work, and is certainly unable to work as a Customer Service Manager at 20 hours per week. Exposure to such is likely to result in an exacerbation and aggravation of her underlying workplace injury.” (Application, pages 34-35).
In a report dated 10 August 2023, Ms Dang considered that Ms Chetty would be capable of engaging in gainful employment in the future “once her mental health condition resolves.” (Application, page 44). She stated that Ms Chetty could begin engaging in modified duties as part of a graded return to work plan in six months’ time and ideally return to pre-injury duties in six to nine months (Application, page 43). When asked if Ms Chetty had capacity to work 20 hours per week as a customer service manager, Ms Dang said:
“In my opinion Ms Chetty would be capable of working in a customer service role but would require a graded return to work plan; one that is flexible and can accomodate [sic] her anxiety about returning to work. It would be unwise to place Ms Chetty in a position or role that would be highly demanding or require from her a significant level of authority, responsibility, or sole decision-making at this time as it may overwhelm her.” (Application, page 44).
Dr Thomas Bennett, general practitioner and Injury Management Consultant, provided a report dated 7 August 2023 to the respondent. Dr Bennett reported that he had spoken with Dr Vincent about the downgrade in capacity, who advised Dr Bennett to talk with the usual NTD, Dr Hoang. Dr Bennett also recorded a discussion with Ms Dang on 1 August 2023. It was noted that:
“Ms Dang was unaware of the reason for the downgrade in capacity. On discussing capacity, she advised that Ms Chetty had capacity to work 4 hours per day, 1 day per week, but Ms Dang advised in a less stressful role she likely has greater capacity, but she couldn’t quantify the amount.”(Reply, page 87).
Dr Bennett provided a supplementary report dated 16 August 2023, following a discussion with Dr Hoang. Dr Bennett reported:
“I had a productive discussion with the NTD, Dr Hoang, on the 14/08/2023, who advised there had been a deterioration recently. She reported the insurer had suddenly stopped all pay without informing Ms Chetty, and this was the cause of her deterioration in her mental health, including passive suicidal ideation and low mood. Ms Chetty reportedly denies receiving the Work Capacity Decision letter, and Dr Hoang strongly felt this needed to be investigated, and that the insurer had no right to do this. I discussed the Work Capacity Decision, and educated Dr Hoang regarding the process. Despite this Dr Hoang reported the capacity would remain at zero, until her payments restarted, and then she would consider increasing the capacity.
Current treatment includes 30mg mirtazapine, but Dr Hoang is concerned compliance is poor, and reported that Ms Chetty often does not attend appointments. She continues to see her psychologist, and has been referred to a psychiatrist. I discussed that I have been informed Ms Chetty has commenced a part-time Certificate IV in Mental Health with TAFE, and this should be reflected in the capacity, Dr Hoang advised she would ask Ms Chetty regarding this.
We agreed the roles from the vocational assessment are still suitable, including: Accounts Clerk, Insurance Representative, Customer Service Manager and Disabilities Service Officer.” (Reply, page 89).
In August 2023, Ms Chetty commenced treatment with Dr Sadaf Rashid, psychiatrist. In a report dated 15 August 2023, Dr Rashid diagnosed Ms Chetty with severe depression with anxiety, post-traumatic stress disorder (PTSD) and panic attacks. The doctor prescribed medication to address her symptoms. Dr Rashid provided the following comments:
“Her worker's compensation has now run out. She had hoped to get well and find alternative work but has been unable to, as she is still depressed and unwell.
…
She lives on the same street where she worked and has found it extremely difficult to drive past it. She has been avoiding doing this since February. When she does go, she feels triggered by the memories of the meeting and how it made her feel. She is tearful all the time. She feels low self-esteem, feelings of worthlessness, and shame. She cannot sleep. She has not been able to get any closure. She is struggling financially as she is a resident of NZ.” (Application, pages 46-47).On 15 August 2023, the respondent issued Ms Chetty with a Notice of Termination effective immediately, as she had been unfit for work since 9 February 2023 (Reply, page 7).
Ms Chetty obtained a vocational assessment report from Platinum Rehabilitation Group dated 25 August 2023. The assessor referred to the report of Dr Kumagaya and Ms Chetty’s presentation during the vocational assessment, and agreed she had no capacity to engage in employment (Application, page 49). The assessor referred to the vocational options of identified by the respondent’s vocational evidence (including the role of customer service manager), and agreed the roles were viable options based on Ms Chetty’s transferrable skills (Application, page 50). The report further identified sales representative and administration assistant as suitable roles. However, the prospective employers contacted as part of the labour market analysis did not consider Ms Chetty was a suitable candidate based on her psychological symptoms and/or hours certified (Application, pp 61-69).
On 7 September 2023, Sophie T from EML sent Ms Chetty an email in response to queries about the WCD:
“[Your case manager’s] request to Dr Elaine to increase your capacity was based off the fact that you were demonstrating capacity to leave the house, drive around and care for your daughter. The capacity on a workcover certificate needs to match one's capacity to engage in activities in everyday life. You were demonstrating that you had capacity for activities of everyday life given that you were leaving the house, driving around, and caring for your daughter. With this demonstrated capacity, Hayden asked your GP to reconsider your capacity on the certificate so that it reflected your capacity to engage in daily activities.
…
However, as previously stated, Dr Elaine is a medical professional who cannot be forced into making decisions about your care. EML, your psychologist and your rehab provider can provide Dr Elaine with information, however the judgment call around your capacity is hers alone to make.”(Reply, page 8).
Dr Hoang provided a report dated 13 September 2023. In relation to Ms Chetty’s absence from work since February 2023, Dr Hoang stated:
“Yes, she has not been able to work or study since 06/02/2023 due to the ongoing symptoms of anxiety and depression which were brought on by the incident at work. She is unable to tolerate the current antidepressants due to the side effects of nausea and insomnia. She did not respond well to the counselling with her previous psychologist. She has recently started to see a new psychologist for further counselling.” (Application, page 76).
When asked if Ms Chetty will ever engage in gainful employment, Dr Hoang said:
“She is able to return to the workforce with assistance for vocational assessment and retraining into a different role with a different industry to her previous employment. She would be suitable to work from home so she also care for her young daughter being a single mother with very little family support.” (Application, page 76).
When queried about the respondent’s vocational report, Dr Hoang said “currently she is unfit to work due to her condition being unstable with fluctuating mood and anxiety level”. The doctor considered Ms Chetty would be able to return to the workforce in an administrative role “but not in a highly stressful environment eg customer service as she is lacking in confidence and easily affected by angry customers.” Dr Hoang was also asked about limitations to be placed on employment, in the event Ms Chetty had capacity to return to employment. The doctor considered Ms Chetty could work up to 20-25 hours per week in an administrative role (preferably working from home, due to being a sole parent) provided it was not highly stressful/demanding or in the insurance industry. However, the doctor also said: “she is able to work again after recovering from her illness and fully equipped with the right training.” (Application, page 77).
Mr Billel Rababi, Ms Chetty’s current psychologist, provided a report dated 26 September 2023. Mr Rababi provided a diagnosis of major depressive disorder, generalised anxiety disorder and PTSD. He recommended ongoing psychological support for the next 6-12 months. In relation to capacity for work, Mr Rababi provided the following opinion:
“Ms. Chetty’s likelihood of employment has been affected as she is experiencing a lack of confidence and self-esteem. The opportunities that Ms. Chetty may have for re-employment may be lifted due to her anxious and depressive symptoms as she would not feel confident enough to follow through the rigor of employment applications and interviews.
I can not determine how she may be impacted long term as my treatment has only been limited to 3 sessions over one month.”(AALD, page 7).
When asked to comment on whether Ms Chetty could perform the role of customer service manager for 20 hours per week, Mr Rababi stated:
“I disagree, Ms. Chetty is experiencing significant anxiety when contemplating any form of paid employment. Her trauma, anxious and depressive symptoms impact her ability to manage her emotions and stress levels, in turn impacting her ability to attend to information and focus on his environment and current stimuli. Specifically, her anxious symptoms include an inability to focus, concentrate, prioritize tasks and complete accordingly, a heightened stress response, overthinking, hypervigilance, avoidance and procrastination.” (AALD, pages 7-8).
REASONS
A dispute concerning work capacity requires consideration of whether a worker has current work capacity or no current work capacity.
Clause 9 of Schedule 3 of the 1987 Act sets out the meaning of “current work capacity” and “no current work capacity” as follows:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The term “suitable employment” is defined in section 32A of the 1987 Act as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(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.”
There is no dispute Ms Chetty has an ongoing incapacity due to her psychological injury and is unable to return to her pre-injury role. Based on the vocational evidence, there appears to be no dispute that Ms Chetty has the education, skills and work experience to engage in the identified role of customer service manager. Neither of the parties made any submissions on this point.
The fundamental issue in dispute is whether Ms Chetty is capable of engaging in suitable employment specified in the WCD (customer service manager) for 20 hours per week having regard to the medical information (section 32A(a)(i) of the 1987 Act), or whether she has no current work capacity as submitted by Ms Chetty.
Ms Chetty submits that there had been some forcefulness by the insurer for her to increase her hours against treating doctor’s advice, so that she was able to drive and pick up her daughter from child care. She says she has no capacity to return to work, and that any return to work would have to be gradual once she has had at least a further six months of treatment. Ms Chetty also submits the employment identified by the respondent is not suitable, as confirmed by four medical professionals (her GP, psychologist, psychiatrist and IME) as well as the vocational assessment from Platinum Rehabilitation Group. She says the role identified requires a level of stability, which she does not currently have due to her condition. Ms Chetty submits that fair amount of weight should be placed on the treating evidence in comparison to the respondent’s report of Dr Bennett, who has not assessed Ms Chetty.
The respondent submits that the applicant is not totally incapacitated for her work and the WCD should be upheld. The respondent says that Ms Chetty has been certified fit for 15 to 24 hours per week since 27 March 2023. It submits that the role of customer service manager has been identified as suitable employment in the vocational assessment report and labour market research report obtained by the respondent, and was approved by Dr Hoang on 12 April 2023. The respondent further submits that the reports of Dr Kumagaya and Platinum Rehabilitation Group (obtained by Ms Chetty) were inconsistent with the treating evidence. The respondent further refers to the report of Ms Dang dated 10 August 2023, submitting that this report confirmed Ms Chetty would be capable of working in a customer service role in a graded return to work plan. It also submits that the Ms Chetty has been provided with ample assistance in finding suitable employment by the rehabilitation provider.
It is necessary for me to consider the nature of Ms Chetty’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity.
I accept Ms Chetty’s submission that the weight of medical opinion supports that she does not have a current work capacity. This submission is supported by the most recent evidence from Ms Chetty’s NTD, Dr Hoang, former treating psychologist, Ms Dang, her current treating psychologist, Mr Rababi, and the Dr Kumagaya, IME. I am not persuaded by the evidence on capacity provided in the vocational assessment report from Platinum Rehabilitation Group, noting this is not strictly a “medical” opinion and as such I do not place significant weight upon it when compared to the qualified medical opinion evidence.
Dr Kumagaya’s report from July 2023 supports that Ms Chetty’s condition was of such severity that she is fully incapacitated for any work (Application, page 24). I note the respondent’s submission that Dr Kumagaya’s view that Ms Chetty has been unable to work in any capacity since the injury is inconsistent with the treating medical evidence. It is also apparent from the “documentation reviewed” that Dr Kumagaya was not provided with any treating medical evidence for consideration (Application, page 25). However, I still see value in Dr Kumagaya’s opinion as an independent expert in psychiatry who has had the benefit of examining Ms Chetty. On the basis of his examination and assessment on 25 July 2023, Dr Kumagaya considered Ms Chetty presented with no work capacity at that time and recommended reassessment of capacity in three to six months’ time following further treatment.
Ms Dang, in her report dated 10 August 2023, supports a return to work for Ms Chetty “in the future once her mental health condition resolves” (Application, page 44). She considered it was possible for Ms Chetty to begin engaging in modified duties as part of a graded return work plan in six months’ time, commencing with four to eight hours per week (Application, pages 43-44). It is apparent that Ms Dang considers Ms Chetty may have some capacity to work in the future, but I am not persuaded this report supports a current capacity to work.
Ms Chetty’s treating psychologist, Mr Rababi, also appears to support a finding of no capacity. In his report dated 26 September 2023, he notes he has seen Ms Chetty on three occasions over the course of a month. He says that Ms Chetty is “experiencing significant anxiety when contemplating any form of paid employment” and he was unable to determine Ms Chetty’s prospects of returning to employment at the time of his report (AALD, page 7).
Turning to Dr Hoang’s report dated 13 September 2023, she provides the opinion that Ms Chetty is “unfit to work due to her condition being unstable with fluctuating mood and anxiety level.”(Application, page 77). I note that there are some contradictions in Dr Hoang’s opinion, as she also says Ms Chetty has had no capacity to work or study since the injury, which is inconsistent with Dr Hoang previously certifying Ms Chetty with some capacity to work.
The respondent’s evidence from Dr Bennett also seeks to place less weight on Dr Hoang’s opinion, suggesting that she downgraded Ms Chetty’s capacity due to the respondent issuing the WCD. However, I note that Dr Bennett did not have the benefit of examining Ms Chetty in forming his conclusions on her capacity. I therefore am not persuaded by his opinion that Ms Chetty’s deterioration in her mental health and reduction in capacity is solely based on the WCD. Further, Dr Bennett’s report merely records a conversation he has had with Dr Hoang. The opinion apparently provided by Dr Hoang to Dr Bennett is not reflected in any of the other medical evidence from Dr Hoang.
The fact that a WCD was issued is not enough on its own to doubt the downgrade in capacity. It is appropriate to review the evidence as a whole to consider Ms Chetty’s work capacity.
When the WCD was issued in April 2023, Ms Chetty was certified as having capacity for 20 hours per week in suitable employment. At that time, it was apparent that Ms Chetty was motivated to find work and had enrolled in an online course with TAFE. The reports from the respondent’s rehabilitation provider, Actevate also suggested that the NTD, Dr Hoang had agreed to upgrades in capacity to assist Ms Chetty in managing her symptoms and to open up further opportunities in the labour market. This suggests there was an upgrade in capacity by Dr Hoang to encourage a return to work in new employment.
The clinical notes indicate that in around May 2023 to June 2023 onwards there was a deterioration in Ms Chetty’s symptoms. There is evidence to suggest that she was having panic attacks applying for jobs, had placed her online studies on hold and there were changes in her medication. In around August 2023 Ms Chetty commenced seeing a psychiatrist and was prescribed new medication. She also commenced seeing a new psychologist around that time. The history in the clinical notes is therefore consistent with Dr Hoang’s opinion in September 2023 that:
“…she is still presenting with symptoms of anxiety and depression She is unable to tolerate the current antidepressants due to the side effects of nausea and insomnia . She did not respond well to the counselling with her previous psychologist. She has recently started to see a new psychologist for further counselling.” (Application, page 76).
Therefore, when reviewing the evidence as a whole, it is apparent that there was some deterioration in Ms Chetty’s symptoms leading up to the downgrade in capacity in July 2023.
I am therefore satisfied the weight of the medical evidence supports that Ms Chetty does not currently have a capacity to work. Whilst there may have been a capacity to work at the time the WCD was issued and for a few months thereafter, the evidence indicates there was a subsequent deterioration in symptoms in around May or June 2023, leading to a downgrade to nil capacity in July 2023. The most recent opinions from Ms Chetty’s treating providers and her IME support that she has no current capacity to work. I am not persuaded by the respondent’s medical evidence from Dr Bennett, particularly as he has not had the benefit of examining Ms Chetty.
The available material suggests there is potential for Ms Chetty to have capacity in the future, on a graded return to work plan. At such time, the respondent can issue a new work capacity decision. However, I am not satisfied that there is a current work capacity based on the evidence presently before me.
For the above reasons, I am satisfied that Ms Chetty has no work capacity.
It follows that the WCD dated 28 April 2023 is to be set aside.
There will be an award for Ms Chetty on the claim for weekly benefits compensation.
0
0
0