Colquhoun v Trustees of the Roman Catholic Church for the Diocese of Bathurst
[2023] NSWPIC 679
•18 December 2023
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Colquhoun v Trustees of the Roman Catholic Church for the Diocese of Bathurst [2023] NSWPIC 679 |
| APPLICANT: | Vanessa Inga Colquhoun |
| RESPONDENT: | Trustees of the Roman Catholic Church for the Diocese of Bathurst |
| PRESIDENT’S DELEGATE: | Rachel Brittliff |
| DATE OF DECISION: | 18 December 2023 |
| CATCHWORDS: | Workers Compensation Act 1987; the worker sustained a workplace injury to her left ankle when while working at St John’s Primary School; the insurer determined that the worker had current work capacity and that the role of a tutor would be suitable employment; the insurer made a work capacity decision about the worker’s entitlement to weekly payments of compensation on the basis that the worker could earn $45 per hour as a tutor; the worker maintained that she had no current work capacity; Held – the role of tutor was not suitable employment for the worker; the worker is entitled to payments of weekly compensation under section 37(1) which outlines the entitlement to weekly payments for a worker with no current work capacity. |
| ORDERS MADE: | The Commission determines: 1. Vanessa Inga Colquhoun (applicant) has no current work capacity. 2. The applicant’s entitlement to weekly payments of compensation is to be determined in accordance with the calculation under s 37(1) of the Workers Compensation Act 1987 (1987 Act). 3. The Trustees of the Roman Catholic Church for the Diocese of Bathurst (respondent) are to pay the applicant weekly payments of compensation calculated in accordance with s 37(1) of the 1987 Act as follows: 80% x pre-injury average weekly earnings (PIAWE) 80% x $1,910 = $1,528 |
BACKGROUND
The applicant was injured at work on 9 September 2023. The applicant was entering her workplace, St John’s Primary School, when she stood on a piece of wood and twisted her left ankle causing her to fall on her hands and knees.
She has been diagnosed as having a left lateral malleolus anterior talo-fibular ligament and calcaneal fibular ligament avulsion fracture. She has also been diagnosed with complex regional pain syndrome.
The applicant was unable to return to work following the injury and has received weekly payments of compensation. Initially the payments were made in accordance with s 36 of the 1987 Act. After 13 weeks of weekly payments, the applicant’s payments were made in accordance with s 37 of the 1987 Act.
On 27 September 2023 the respondent made a work capacity decision about the applicant and issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) (notice).
The notice stated that the respondent had determined that the applicant had current work capacity in accordance with the definition under Schedule 3(9)(1) of the 1987 Act.
The respondent determined that the roles of tutor, learning support teacher and support coordinator were suitable employment options for the applicant in accordance with the definition set out under s 32A of the 1987 Act.
The responded calculated the applicant’s current weekly earnings based on the rate payable for a tutor.
The applicant disagreed with the respondent’s determination and referred the dispute to the Personal Injury Commission (Commission) to be determined in accordance with Part 5 of the 1998 Act.
PROCEDURE BEFORE THE COMMISSION
The parties attended a telephone conference before me, the President’s Delegate, on 4 December 2023.
The applicant was represented by Bruce McManamey, counsel, and Emma Thomson, solicitor.
The respondent was represented by Thomas Murray, solicitor.
The parties were unable to reach an agreed resolution of the dispute.
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.
ISSUE FOR DETERMINATION
The issue for determination is whether the applicant can undertake employment consistent with the definition under s 32A of the 1987 Act, and consequently whether the applicant has current work capacity in accordance with the definition under Schedule 3(9)(1) of the 1987 Act.
DOCUMENTS
I have considered the following documents in making this determination:
(a) the Application and attachments, and
(b) Reply, and attachments.
LEGISLATION
Section 37 of the 1987 Act sets of the method of calculation of weekly payments for workers within the second entitlement period as follows:
“The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s PIAWE.
The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s PIAWE, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.
The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s PIAWE, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 32A of the 1987 Act gives the following definition for suitable employment:
“1. 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.”
Schedule 3(9) of the 1987 Act provides the following definitions of “current work capacity” and “no current work capacity”:
“1. An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
2. An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Section 297 of the 1998 Act provides:
“1. The President is to presume that an interim payment direction for weekly payments of compensation is warranted unless it appears to the President that—
a.the claim concerned has minimal prospects of success, or
b.the worker has returned to work, or
c.the injury was not reported by the worker as required by section 44 (Early notification of workplace injury), or
d.insufficient medical evidence is available concerning the period of incapacity of the worker, or
e.circumstances exist that are prescribed by the regulations as circumstances in which it is not to be presumed that such a direction is warranted.”
SUBMISSIONS
The parties provided submission during the expedited assessment hearing which were recorded. A brief summary is set out below.
The applicant submits:
(a) she has both a physical and psychological injury;
(b) Dr Fiaz Noore, consultant psychiatrist & specialist pain management physician, stated that due to her high impact pain levels and her associated major depressive disorder, the applicant would not be able to work 15 hours per week as a learning support teacher, tutor or learning support coordinator;
(c) her psychological injury is causally related to the workplace accident;
(d) her combined physical and psychological injuries have resulted in her having no current work capacity;
(e) Dr Denise Tong, consultant rheumatologist, states that her physical injury would mean that any work she had capacity for would need to exclude prolonged standing and not require her to squat, kneel or repetitively negotiate steps;
(f) Dr Melissa Riddle prepared a report dated 14 July 2023 in which she stated:
“I was shocked by the recommendation from CCI (vocational assessment provider) but thought it would be reviewed once I communicated that I had forgotten her remote job had come to an end and I had omitted to specify she was only fit to work from home, needing to change position frequently to manage her pain, and her inability to use stairs not to walk quickly if necessary.”
(g) Dr Riddle has certified that the applicant has no current work capacity since April 2023;
(h) the vocation assessment that the insurer relies on is out of date because it is from October 2022 and the applicant’s medical status has changed since then;
(i) she relies on the matter of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 57. The decision in that matter confirms that ‘suitable employment’ as defined by s 32A of the 1987 Act refers to employment which actually exists in NSW. The test does not apply to theoretical employment, and
(j) she is not qualified to teach in the states where roles have been identified by the respondent.
Respondent’s submissions
The respondent submits:
(a) the applicant’s educational and vocational history are extensive. She has a good range of transferrable skills which supports its finding that she has capacity for suitable employment;
(b) Dr Anthony Cadden, orthopaedic surgeon, provided a report dated 5 April 2023 in which he provided a diagnosis that is consistent with that provided by the applicant’s medical team;
(c) based on his examination Dr Cadden found that the applicant would be:
“Capable of working with small groups of students but she would not be fit to carry out playground duty due to the left ankle.”;
(d) the applicant is fit for a wide range of employment without an hourly restriction;
(e) Dr Cadden appears to be alone in not providing an hourly restriction on the applicant’s capacity for employment, however, there is evidence that within the restrictions, being limitations on standing and playground duty, the applicant is fit to work in suitable employment;
(f) notes Dr Tong’s report dated 15 August 2023 and refers to the following extract:
“She would be fit for sedentary or semi-sedentary work not involving prolonged standing. Ms Colquhoun is fit for suitable duties such as writing educational material, doing one-on-one teacher to student tutoring at reduced hours of 15 hours per week providing she modifies the job tasks so she is not required to squat, kneel or repetitively negotiate steps.”;
(g) Dr Tong and Dr Cadden appear to be largely in agreement about the applicant’s capacity to work in suitable employment;
(h) refers to Dr Noore’s report which states that as a result of the applicant’s high impact pain and her psychological condition she is not fit to work 15 hours per week as a learning support teacher, a tutor or a learning support coordinator;
(i) refers to Dr Riddle’s report in which she states:
“It was not until she received notification of the reduced payments that she became extremely distressed and fearful for her future”.
(j) the respondent submits that the applicant’s depressive condition emerged in the context of its decision to determine the applicant’s entitlement to weekly payments of compensation. This was followed by the downgrade in the work capacity certificates;
(k) refers to Dr Riddle’s report and says that a reasonable reading of the report indicates that the reason for the downgrade is the psychological condition. It also considers that Dr Riddle’s change of opinion, that is, her view that the applicant is only able to work from home is based on two restrictions being an inability to use stairs and the need to change position frequently;
(l) there is no dispute that the applicant could not return to work as a classroom teacher;
(m) considers that, when read as a whole, Dr Riddle’s report indicates that the applicant has capacity for some type of employment where she would not be required to carry more than two kilograms in weight, was able to restrict standing to a maximum of 10 minutes, must be able to sit and elevate her left leg after standing for 10 minutes, is not required to get up from sitting on the floor without assistance and limits driving to 30 minutes;
(n) agrees that the certificates of capacity state that the applicant is totally unfit for employment;
(o) refers to a vocational assessment report prepared by Lisa Mumford of WorkFocus Australia dated 31 October 2022 (vocational assessment). It states that the rehabilitation consultant who prepared the report turned their mind to the definition of suitable employment under s 32A of the 1987 Act when preparing the report about the applicant’s employment options;
(p) the vocational assessment documents that the applicant was motivated to find work, was participating in job seeking but has not actively applied for any roles because there has been nothing suitable;
(q) the age of the vocational assessment does not diminish its relevance in terms of the applicant’s vocational history, education or transferrable skills;
(r) it agrees that the applicant would not be qualified to work in a teaching role outside of NSW;
(s) an employer contact for the role of a special education teacher indicated that the applicant had the necessary skills for the role even though the contact said the applicant may require additional qualifications, it submits that the additional qualifications were not prerequisite to undertaking the role, and
(t) the applicant has capacity to undertake sedentary or semi-sedentary work including undertaking work as a tutor.
The applicant provided a brief reply to the respondent’s submissions which are summarised as follows:
(a) the respondent did not take the applicant’s decline in mental health into account when making the work capacity decision;
(b) all of the NSW teaching jobs were lead teacher roles which the applicant is not qualified to undertake,
(c) Mr Ross Girdler prepared a report in which he found that the applicant had no prospect of obtaining work of any form.
I requested clarification from the parties about whether the respondent had formally disputed the applicant’s claim that she had a psychological injury arising from the workplace accident. The respondent directed me to the notice dated 27 September 2023. It submits that the notice tells the applicant that the respondent disputes her claim of an accident-related psychological injury.
The applicant submits that the notice does not clearly indicate that the respondent disputes the psychological injury. Rather, the respondent believed that there was insufficient information to support a downgrade to the applicant’s work capacity.
EVIDENCE
Applicant’s evidence
Personal statement
The applicant’s personal statement:
(a) provides a range of information including a statement about the impact of the injury on her and her current work capacity. The applicant does not believe that she has current work capacity due to the combination of her physical and psychological injuries;
(b) provides evidence about the vocational assessment. She included an email to
Al English as well as an attempt to contact the organisation via Facebook. AI English was one of the employers contacted for the purpose of the vocational assessment. She indicated that she did not receive a response to either of her attempts at contact with the AI English and believed the business is no longer operating;(c) she contacted Alchemy Tuition by email about a role as an online tutor which was included in a labour market analysis report prepared by Mr Timothy Hunter of WorkFocus, dated 20 September 2023 (labour market report). She received a response from the organisation that the hourly rate of pay was $30 per hour (not $45 as stated in the vocational assessment) and they required tutors to deliver both online and in person tutoring sessions, and
(d) she requested two days of training to complete the MacqLit Professional Development course. It is a two-day course and would provide her with the qualification she needs to work as a learning support teacher.
Notices issued in accordance with s 78 of the 1998 Act
The applicant included four notices under s 78 of the 1998 Act with her evidence. The most recent is dated 27 September 2023. The notice indicates that the insurer determined that the applicant had:
(a) current work for 15 hours of work per week;
(b) the ability to work in suitable employment as a tutor, learning & support teacher and learning & support co-ordinator, and
(c) the ability to earn $675 per week in suitable employment.
Legal correspondence with the respondent
The applicant included letters dated 18 August 2023 with her evidence:
(a) a letter to the respondent regarding a claim for a lump sum benefit made pursuant to s 66 of the 1987 Act;
(b) a request for an internal review of the notice under s 78 of the 1998 Act, and
(c) a notice serving reports prepared by Mr Girdler and Dr Riddle.
Medico-legal report prepared by Dr Denise Tong
Dr Tong, consultant rheumatologist, prepared a report dated 15 August 2023 in which she stated that the applicant was not fit for her pre-injury employment. Dr Trong believed that the applicant was fit for sedentary or semi-sedentary work not involving prolonged standing. She could undertake suitable duties for 15 hours per week so long as she was not required to squat, kneel or repetitively negotiate steps.
Medico-legal report of Dr Anthony Cadden
Dr Anthony Cadden, orthopaedic surgeon, prepared a report dated 5 April 2023 following an independent medico-legal examination of the claimant.
Dr Cadden indicated that he believed the applicant had capacity to work with small groups of students but that she would not be fit to carry out playground duty. He also noted that she had persistent pain in the left ankle which limited her capacity for sitting and standing.
Medico-legal report of Dr Ron Haig
Dr Ron Haig, orthopaedic surgeon, prepared a report dated 7 February 2022 following a medico-legal examination of the claimant.
Dr Haig considered that the applicant could work in a purely sedentary capacity at the time of the examination.
Treating practitioner report of Dr Faiz Noore
Dr Faiz Noore, consultant psychiatrist and specialist pain medicine physician, is a treating practitioner for the applicant. Dr Noore provided a report dated 23 January 2023 in which he noted that the applicant continued after a previous consultation to feel sad and anxious. She worried about her future.
Regarding treatment, Dr Noore stated:
(a) Mrs Colquhoun wants to see if her mood improves without trialling escitalopram again;
(b) if she does not improve, then she will take the escitalopram at night, and
(c) if nocte dosing is still associated with excessive sedation during the say, it would be appropriate to trial an alternate antidepressant, such as sertraline or duloxetine.
Dr Noore prepared a report dated 30 August 2023 in which he reported that he did not believe the applicant was fit to undertake employment for 15 hours a week as a learning and support teacher, a tutor or a learning support coordinator.
Dr Noore considered that the applicant’s inability to undertake the employment described above arose from both her major depressive disorder and high impact persistent pain.
I have also noted two earlier reports from Dr Noore dated 24 October 2022 and 16 November 2022.
Treating practitioner report of Dr Melissa Riddle
Dr Melissa Riddle, general practitioner, prepared a report about the claimant dated 14 July 2023. Dr Riddle provided a detailed history of her consultations with the applicant including the progress of her physical injury, the onset of her psychological symptoms and her capacity for employment.
Under the heading “history”, Dr Riddle referred to a clinical note dated 21 October 2022 in which she made the following comment:
“A vocational assessment was done by WorkFocus Australia. V(anessa)’s work restrictions at the time were 15 hours per week, in the form of 3h daily, 5 days per week; this regime would allow time to rest and elevate the L leg.
However I had forgotten to specify working remotely – it would have been and still is impossible for Vanessa to get around a school campus/ care for children’s safety in a playground or sit or stand in a classroom for any length of time.”
Later in the report, under the heading “findings and diagnosis”, Dr Riddle stated:
“I was shocked by the recommendation from CCI (Catholic Church Insurance) but thought it would be reviewed once I communicated that I had forgotten her remote job had come to an end and I had omitted to specify she was only fit to work from home, needing to change position frequently to manage her pain, and her inability to use stairs nor to walk quickly if necessary.”
The final notation of significance is under the heading “ability to perform all duties required by the occupations listed by WorkFocus”. Dr Riddle stated:
“WorkFocus suggested occupations including: learning support teacher/ learning support coordinator/ tutor.
Vanessa could only do these within the restrictions I’ve listed:
Carry not > 2kg; Standing not > 10 minutes without sitting down to rest and elevate her injured leg; Not using more than 1 step; Sitting: needs to elevate L lower leg; cannot currently get up independently from sitting on the floor; Driving not > ½ hour.”
That is, she is only partially fit. These restrictions would limit Vanessa’s opportunity to do paid work.
Certificates of capacity
Dr Riddle issued a certificate of capacity dated 11 October 2023. The certificate is the most recent of those that were provided by the applicant. The certificate states that the applicant had no current work capacity between 11 October 2023 and 11 November 2023.
Dr Riddle anticipated that the applicant would be fit to undertake some type of employment within a month, but only if employment that accommodated her physical restrictions could be identified.
The specified physical restrictions included:
(a) not lifting greater than 2kg;
(b) not standing greater than 10 minutes without sitting down;
(c) not more than one stair, not running yet;
(d) can’t get self back up off floor from sitting at present;
(e) no driving for more than 30 minutes, and
(f) needs to work from home for 15 hours per week being 3 hours per day, five days per week.
Report of Dr Todd Gothelf
Dr Todd Gothelf, orthopaedic surgeon, prepared a report dated 27 June 2022 about the applicant’s treatment progress and recommendations. He noted that she had complex regional pain syndrome. He recommended ongoing physiotherapy and sent her for an MRI due to additional symptoms.
Assessment Hub report on the vocational implications of the injuries sustained by Ms Vanessa Colquhoun
Mr Ross Girdler prepared a report on the vocational implications of the applicant’s injuries. The report is dated 7 July 2023.
Mr Girdler considered the medical evidence now relied on by the applicant[1] as well as the vocational assessment and the notice dated 17 February 2023. Based on the information within the documents, Mr Girdler made the following observations regarding the suitable employment options identified in the vocational assessment:
(a) the vocational assessment notes that the roles of a learning and support teacher and learning and support coordinator require frequent sitting, standing and walking, occasional bending, squatting or crouching, and occasional to frequent driving;
(b) both of the above roles involve exposure to accidental contact with children, and
(c) neither role is conducted from home.
[1] With the exception of certificates of capacity issued by Dr Riddle
Mr Girdler believed that neither the role of a learning and support teacher or learning and support coordinator would be suitable roles for the applicant based on the physical requirements of those roles.
Mr Girdler made the following observation regarding the tutoring roles identified in the vocational assessment report:
“The section 78 notice makes its calculation of Ms Colquhoun’s earning capacity based on employment as a Tutor, in accordance with the vocational assessment report’s findings. The author of the vocational assessment allegedly contacted three employers to gain information regarding this occupation. A brief internet search confirmed that the information presented is misleading. One company allegedly contacted is a Melbourne-based organisation which, contrary to the vocational assessment’s description, does not offer working from home, and their employees are video presenters from a variety of backgrounds whose material is used by students in China learning the English language. Another only offers tutoring for high school students and accepts recent HSC graduates as Tutors. The other is a Bondi-based company that, again, does not offer their employees the opportunity for working from home, but does expect that they meet regularly with the child’s classroom teacher, presumably in the classroom.”
Other documents
Other documents attached to the Application for Expedited Assessment include:
(a) letter of appointment by the Catholic Education Diocese of Bathurst dated 21 July 2021;
(b) payroll records;
(c) email from Phillip Andrews on behalf of the respondent;
(d) letter from the respondent withdrawing suitable duties for the applicant, and
(e) the applicant’s resume.
Respondent’s evidence
The respondent relies on the following evidence which are duplicated from the applicant’s evidence:
(a) Dr Haig’s report dated 7 February 2022;
(b) Dr Cadden’s report dated 5 April 2023, and
(c) notices issued under s 78 of the 1998 Act.
I will not refer to these in this part as they have been summarised above.
WorkFocus Australia vocational assessment report
The vocational assessment was prepared by Lisa Mumford, rehabilitation consultant, and is dated 31 October 2022.
I have summarised the information presented on the role of a tutor as this is the role relied on by the respondent in the notice to calculate the applicant’s ability to earn in suitable employment.
The role of a private tutor typically has the following functional requirements:
(a) sedentary to light physical work. Frequently sits in offices and teaching spaces when teaching activities, preparing teaching materials, completing administration tasks, marking assignments or in discussion with students and/or parents;
(b) stands and walks frequently around the teaching spaces to teach the class, monitor and interact with students and to provide individual guidance and support;
(c) occasional bending, squatting or crouching may be required when giving practical demonstrations or assisting students in tasks such as hemming however, this is not a significant component of the job;
(d) occasional stretching and twisting movements are required to write or draw on whiteboards and demonstrate practical activities;
(e) occasional lifting, pulling or carrying is required within a sedentary to light physical demand. However, this is not a significant component of the job;
(f) frequent repetitive hand and finger movements are required when using writing, drawing and ceramic tools and when sewing or using computers, and
(g) there is frequent use of office and educational learning equipment/materials including art materials, thread, needles, sewing machines, books on methodology, computers, telephones, photocopiers and printers.
Ms Mumford contacted Discover Learning in Bondi. The contact indicated that the applicant had the relevant skills required for the role and that her functional tolerances were consistent with the requirements.
Ms Mumford contacted Al English on-line tutoring which provided similar feedback to Discover Learning.
Ms Mumford contacted XCD Potentia Education about a role for an English tutor. The role was for a tutor for high school students.
Dr Riddle sign off for vocational options
The insurer relies on a document dated 14 December 2022 in which Dr Riddle agreed to the vocational options of learning and support teacher, learning and support coordinator and tutor. She qualified the approval with the requirement that the roles must accommodate the applicant’s specified hours of work and functional tolerances which were outlined on the certificate of capacity.
Labour market analysis report
The insurer relies on a labour market report dated 20 September 2023 prepared by Mr Hunter of WorkFocus Australia.
Mr Hunter contacted Alchemy Tuition which he said stated that it could offer roles for tutors that allowed for a 15 hour working week and which could be undertaken from home.
Just Tutors was said to offer a similar role to the one outlined by Alchemy Tuition as did CM tutoring.
PIAWE indexation letter
The respondent has included a PIAWE indexation letter in its reply.
REASONS
Capacity for some type of employment
I have considered the medical information relied on by the applicant and outlined above. I accept that Dr Noore does not consider that the applicant has capacity for some type of employment for 15 hours per week.
I also acknowledge that the most recent work capacity certificate prepared by Dr Riddle indicates that the applicant had no current work capacity between 11 October 2023 and 11 November 2023.
In the above certificate Dr Riddle considered that the applicant was likely to have capacity for some type of employment within a month from 11 October 2023 provided that the employment involved working from home for no more than 3 hours per day, five days per week within the functional tolerances outlined above at paragraph 48 above.
Dr Riddle was aware of Dr Noore’s opinion about the effect of the applicant’s psychological condition when she prepared the certificate of capacity.
The remaining opinions from treating practitioners and medico-legal specialists detailed that the applicant had some form of capacity for employment on a part-time basis but were less specific about the applicant’s functional capacity in the context of employment.
I am satisfied that the balance of medical evidence indicates that the applicant has capacity for some type of employment in keeping with the requirements that the applicant:
(a) works from home;
(b) works no more than three hours per day, five days per week;
(c) does not lift greater than 2kg;
(d) does not stand longer than 10 minutes without sitting down;
(e) does not climb not more than one stair, not running yet;
(f) is not required to get herself up off floor from sitting, and
(g) is not required to drive for more than 30 minutes.
Considering my findings below, I have not needed to determine the impact of the claimant’s psychological condition on her capacity for employment.
Suitable employment
The respondent relied on the role of a tutor as suitable employment for the applicant. This was the role on which it based its determination about the applicant’s current weekly earnings.
For employment to be suitable in accordance with the definition under s 32A of the 1987 Act, it must enable the applicant to undertake work within the functional limitations set out at paragraph 71 of this decision.
The finding that tutoring work that existed which met the applicant’s physical requirements was based on the labour market report prepared by Mr Hunter referred to above at paragraph 62 of this decision.
Mr Hunter contacted three employers. Alchemy Tuition was one of the employers included in the report. Mr Hunter stated that Alchemy Tuition offered roles that allowed tutors to work exclusively from home.
The applicant contacted Alchemy Tuition via email requesting information about tutoring roles. A representative from Alchemy Tuition responded to the applicant’s request via email on 5 October 2023. The representative stated that Alchemy Tuition did not offer tutoring roles on a work from home basis only. All tutors were required to teach some face-to-face classes.
Mr Hunter recorded that Alchemy Tuition paid $45 per hour for tutoring. The representative from Alchemy Tutoring stated that the organisation pays $30 per hour for online tutoring and $40 per hour for face-to-face tutoring.
Mr Hunter also contacted Just Tutors. The Just Tutors website states that all classes are face-to-face. This contradicts Mr Hunter’s report that they have roles available for tutors who worked from home and raises concerns about the accuracy of the labour market report.
Given that the inaccuracy of the information provided by Mr Hunter about the existence of work for tutors on an exclusively remote basis, I am not satisfied that any weight should be afforded the report prepared by Mr Hunter.
I have also considered the vocational assessment. The document was prepared prior to, or at least without consideration of, the applicant’s work from home requirement. Accordingly, the information included in the report is insufficient for me to determine whether any of the suggested employment options may be suitable employment.
For the reasons outlined above, I am not satisfied that the role of a tutor is suitable employment for the worker having regard to the nature of the applicant’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under s 44B).
I am therefore satisfied that the applicant has no current work capacity in accordance with the definition under Schedule 3(9)(1) of the 1987 Act.
SUMMARY
The role of a tutor is not suitable employment for the applicant in accordance with s 32A of the 1987 Act.
The applicant has no current work capacity in accordance with the definition under Schedule 3(9)(1) of the 1987 Act.
The applicant’s entitlement to weekly payments of compensation is to be calculated in accordance with s 37(1) of the 1987 Act.
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