Dutt v Bowditch Transport
[2022] NSWPIC 369
•8 July 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Dutt v Bowditch Transport [2022] NSWPIC 369 |
| APPLICANT: | Isaac Dutt |
RESPONDENT: | Bowditch Transport |
| PRESIDENT’S DELEGATE: | Parnel McAdam |
| DATE OF DECISION: | 8 July 2022 |
| CATCHWORDS: | Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker injured when bitten by dog; suffered both a physical and psychological injury; worker had returned to work as an apprentice; whether role of call centre operator suitable employment; medical evidence supported physical capacity, insufficient medical evidence regarding psychological capacity; Held – work capacity decision upheld; interim payment direction declined. |
| DIRECTIONS MADE: | 1. I decline to make an interim payment direction. |
STATEMENT OF REASONS
BACKGROUND
Mr Dutt (the applicant) is a young man who suffered a traumatic injury on 23 December 2020. He was delivering a package when cornered by the recipient’s dog, who proceeded to bite him. The dog latched on and would not let go for a number of minutes, until the owner came and retrieved it. Mr Dutt suffered a physical injury to his groin and a psychological injury. He continues to suffer, to some degree, from the effects of those injuries.
On 28 February 2022 the respondent’s insurer issued a section 78 notice, bringing Mr Dutt’s entitlement to weekly payments to an end. The decision was due to take effect on 9 June 2022, but due to the operation of a stay, will not take effect until my decision is issued.
Mr Dutt commenced the present proceedings in the Personal Injury Commission (the Commission) on 8 June 2022. The matter proceeded to a teleconference on 21 June 2022, but was unable to be resolved at that point. The parties made oral submissions which were recorded.
ISSUES IN DISPUTE
The sole issue in dispute in this matter is the applicant’s capacity for suitable employment pursuant to the definition in s 32A of the Workers Compensation Act 1987 (the 1987 Act).
THE LEGISLATION
As this dispute concerns suitable employment, I must consider the definition in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Section 37 of the 1987 Act provides:
“(1) 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 pre-injury average weekly earnings.
(2) 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 pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) 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 pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”
THE EVIDENCE
I have reviewed all of the evidenced lodged by the parties attached to the Application for Expedited Assessment (the Application) and Reply. The key documents relevant to the determination of the issues in dispute are discussed below. For reasons not made clear during the teleconference, much of the evidence was attached two or three times to the index of documents, which has made my consideration of all of the evidence more difficult.
The dispute notices
The respondent’s insurer issued a section 78 notice on 28 February 2022. That notice reduced Mr Dutt’s weekly compensation payments to nil based on a capacity to work in suitable employment for 7.6 hours per day, 5 days per week, as a call centre operator, sales assistant, or picker packer. The notice largely relied on the vocational assessment and labour market analysis of interact injury management.
A section 287A notice (review decision) was issued on 25 March 2022. It appears, from the decision, that Mr Dutt made the application himself rather than through his legal representatives. The review decision was the same as the initial section 78 notice, that is that Mr Dutt had the ability to earn $1,185.60 per week in suitable employment as a call centre operator.
Reports provided by Interact Injury Management
Interact Injury Management provide two reports, a vocational assessment report and a labour market analysis.
The vocational assessment report is dated 15 November 2021. It recommends the provision of job seeking assistance. At the time of the report (note that this has since changed) Mr Dutt was not working, and was undergoing psychological and physiotherapy treatment. Mr Dutt self-reported restrictions in bending, general household tasks and concentration, the latter recording:
“Mr Dutt reported that his concentration has been affected by the work cover process. Mr Dutt advised that it is difficult to talk about his experience with different people in the work cover process every day. Mr Dutt reported that he experiences nightmares about the attack. Mr Dutt advised that he finds it difficult to concentrate on things he enjoys doing including playing videogames”.
Mr Dutt’s education, employment and transferrable skills were considered. Mr Dutt completed year 12 schooling and has since completed some varied further education at TAFE.
Given Mr Dutt’s relatively short work experience, noting his age, his transferrable skills listed were limited.
The following psychosocial changes following injury were recorded to be present:
“Mr Dutt advised that his mental health suffered due to his injury and the Workers Compensation process. Mr Dutt advised that he has been told by his psychologist that he may be suffering from Post-Traumatic Stress Disorder (PTSD). Mr Dutt advised that he does not believe he is suffering from PTSD, and does not believe that psychological treatment is very beneficial”.
Various suitable employment options were considered. In terms of the role relied on by the respondent of call centre operator, it was said to be sedentary. Mental skills necessary include a sound level of recording, organisation and communication skills.
A labour market analysis was completed on 6 December 2021. The requirements of each role identified (which go beyond those mentioned in the section 78 notice, and include contingency employment options) were discussed from a functional point of view, as well as the core duties and earnings.
For the role of call centre operator it was again noted that the mental skills include “a sound level of recording, organisation and communication skills”. The core duties were those to be expected of a call centre operator, including answering calls, assisting customers, working with databases and the like. No formal qualifications were noted. Three employers were contacted and the duties, skills, and prior experience were discussed. The role was considered suitable. The same process was undertaken for the other roles identified.
Evidence of Dr Noman Jawaad
Dr Jawaad is Mr Dutt’s treating general practitioner and has been since November 2021. A clinical note, dated 4 November 2021 records the first visit with Dr Jawaad who notes a “very long and sad story of bitten by a dog”. Dr Jawaad noted at that time that Mr Dutt “has pain issues and psychological fear, lack of confidence, etc and cannto go back to hsi same job” [sic].
In a note recorded on 17 February 2022, Dr Jawaad notes that Mr Dutt has found a new job as an apprentice fitter. At this time he records “I have strongly advise Isaac to consider antidepressants and antianxiety medication and psychologist and psychiatrist review”, and that he was confident he needed those things as well as being “certain” he needs a psychiatrist and a psychologist.
Dr Jawaad provides a response to a facsimile about vocational options on 2 December 2021. Ten potential suitable employment options were presented to Dr Jawaad, who approved some and not others. Relevantly, he approved the role of call centre operator. He provided that Mr Dutt was fit for “F/T” hours per day “F/T” days per week “from now”. Dr Jawaad provides a certificate of capacity for the period 26 May 2022 to 26 June 2022 for 8 hours per day, 5 days per week for some type of work. His capacity for activities was said to be “limited” in relation to each listed activity, although with no explanation.
Report of Dr Tame
Dr Tame is a pain management specialist treating Mr Dutt. He describes Mr Dutt as suffering from long standing paroxysmal pain, with episodes occurring several times and day and lasting for several minutes. Dr Tame opines:
“I am hopeful that with appropriate psychological and psychiatric interventions that Isaac’s symptoms will improve. No amount of psychology or psychiatric input will cure the problem, but I am hopeful that symptoms will become much less intrusive. I think a pain focussed psychology intervention is much more likely to be effective for Isaac that a general psychology intervention.”
Dr Tame does not provide any particular commentary about Mr Dutt’s capacity for work in suitable employment.
Report of Dr Candice Jensen
Dr Jensen is a consultant psychiatrist who has seen Mr Dutt on one occasion. She provides a report dated 25 May 2022. Dr Jensen records that Mr Dutt was given a script for antidepressants but had not started it. At the time of assessment Mr Dutt was working in his new role, but was noted to “keep looking out for danger” and was safety conscious. The impression was recorded as: “21 year old gentleman with no previous mental health history presents with multiple somatic complaints post dog bite. Physical symptoms appear to have a psychological basis to them/somatizing. Appears to have some anxiety related to event”.
Ongoing psychological intervention was recommended. Work capacity was not discussed, other than “encourage ongoing work at current job as gives routine/structure/distraction”.
Report of Dr Uthum Dias
Dr Dias is an occupational physician who provides an independent medical expert report on behalf of the applicant. He records Mr Dutt’s occupational/work history prior to his work injury as a delivery driver. He outlines the occurrence on injury occurring on 23 December 2020, involving the dog bite, with Mr Dutt being taken to hospital for further assessment. Dr Dias outlines Mr Dutt’s subsequent progress including appointment with Dr Tame. In terms of his psychological symptoms, it is recorded:
“Mr Dutt has also suffered with significant posttraumatic symptoms of depression and anxiety as a result of his involvement in the subject accident. He currently follows up with a treating psychologist once every two to four weeks, but reports that his psychologist is somewhat erratic in keeping up appointments with Mr Dutt. He saw a psychiatrist for the first time on 25th May 2022, Dr Candice Jensen. He is due to follow up again with Dr Jensen within the next one to two months. He is not currently on any antidepressant or anxiolytic medications.”
Mr Dutt was noted to be working full time as an apprentice fitter, but was “struggling to cope with the demands of his job role”, said to be due to a “combination of his physical and psychological injuries”.
Dr Dias records current symptoms including chronic moderate lower back pain, stiffness and discomfort, tension headaches and neuropathic pain. Pain was rated as 5 out of 10 on the visual analogue scale. He was noted to “hardly ever” write or use a computer, so could not estimate the impact of his condition on those tolerances. Dr Dias provided a diagnosis consistent with the above reported symptoms. He records, in relation to the psychiatric sequelae:
“Mr Dutt suffers from symptoms consistent with posttraumatic stress disorder with associated generalised anxiety and depression. Mr Dutt’s psychiatric injuries should be evaluated by an independent psychiatrist for diagnostic clarity.”
The prognosis was said to be “relatively poor”. Dr Dias opines that the applicant is “partially incapacitated for employment” with the following restrictions:
“• Mr Dutt is fit to work on a full-time basis, i.e. eight hours per day five days per week
• Mr Dutt should avoid performing over time hours at the present time
• Mr Dutt should avoid lifting any items weighing greater than 10kg on a repetitive basis
• Mr Dutt should avoid performing any pulling and pushing duties using force greater than 10kg
• Mr Dutt should avoid performing any tasks that involve repetitive bending and twisting of thelower back
• Mr Dutt should avoid performing any tasks that involve prolonged kneeling, squatting or crouching
• Mr Dutt should avoid any work tasks in confined spaces
• Mr Dutt should avoid any tasks that involve prolonged walking on uneven ground, repetitive staircase climbing or ladder climbing
• Mr Dutt should walk, stand and sit to tolerance”
Dr Dias opined that there would be long-term negative impact on Mr Dutt’s vocational options, leading to a reduction in working life. In terms of his capacity for employment in the roles identified by the insurer, Dr Dias rejected the role of picker packer as being suitable due to Mr Dutt’s symptomatology. In relation to the roles of call centre operator and sales assistant, he opines:
“Mr Dutt is capable of working as a call centre operator or as a sales assistant within the restrictions mentioned above in my answer to question 6.
Please note, that I have not taken into account Mr Dutt’s psychiatric injuries (his condition of significant PTSD with associated generalised anxiety and depression) when formulating the abovementioned restrictions. It is possible, that Mr Dutt’s psychiatric injuries may preclude him from working as a call centre operator or as a sales assistant. I would strongly recommend that Mr Dutt’s psychiatric injuries be independently evaluated by a consultant psychiatrist, for the purposes of providing clarity around Mr Dutt’s employment capacity from a mental health perspective.”
SUBMISSIONS
Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions.
Applicant’s submissions
The applicant was represented by counsel who provided submissions at the teleconference. The applicant took me to relevant parts of the evidence, starting with the worker’s statement. The applicant noted that he had returned to work this year and earns about $540 per week, with some absenteeism. The applicant submits that the vocational assessment did not assess in a real way his capacity psychologically, and that he suffers from ongoing psychological symptoms, tiredness and panic attacks.
The applicant referred to the respondent’s vocational assessment report noting that his concentration has been affected by the process and he finds it difficult to concentrate on things. The functional and cognitive requirements of the role need to be considered, and whether restrictions reported in his concentrated and ability to complete tasks as required would in fact be suitable to work, day in day out over a 38 hour week.
The applicant referred to the report of Dr Tame and submits that what one gleans from the report is that Dr Tame is going to review the worker in three to four months after the consult, and it is identified that the worker has a significant problem with his psychological health.
The applicant referred to the report of Dr Jensen, and notes that he was told he should take anti-depressant medication. Mr Dutt was said to be upset noting that two years had been wasted. The impression was that the physical symptoms had a psychological basis, and Mr Dutt had some ongoing anxiety related to the event.
Finally, the applicant referred to the report of Dr Dias. Physically, the worker is said to be extremely guarded. Dr Dias has not taken into account his psychiatric injuries, but it is possible that he is precluded from those roles on a psychiatric basis. Dr Dias notes that Mr Dutt should be reviewed by an independent psychiatrist.
The applicant submits that what is before me (i.e. the worker’s current role as an apprentice) ought be determined as the limit of what this worker is able to earn in suitable employment. It is a real job as contemplated in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar). The applicant submits that I would find that the worker has done the best he can in returning to full time work but there is a real issue as to whether he could perform the work as a call centre operator involving concentration and the ongoing day to day and tedious tasks involved in such work.
The applicant submits he is entitled to an ongoing payment under s 37 of the 1987 Act of $546.25.
Respondent’s submissions
The respondent submits that the work capacity decision was soundly based when it was first made and should be upheld as soundly based. It was based on 7.6 hours per day, 5 days per week, but the worker currently has equal or more than that capacity.
The respondent referred to the signoff provided by Dr Jawaad and notes that he has actively considered all roles provided, excluding some based on psychological symptoms, but affirming that call centre operator would not be impeded by his psychological condition.
The respondent referred to the applicant’s concern about his absenteeism in his statement but notes that the applicant has tendered no evidence in that regard.
The respondent notes that the vocational assessment and the treating doctors clearly acknowledge that Mr Dutt was suffering from mental health problems. Mr Dutt’s symptoms were considered holistically when the vocational assessment was conducted and performed by the insurer.
In terms of Mr Dutt’s concentration, as expressed by Dr Jansen, it was noted that the worker reads and plays videogames. Dr Tame encourages ongoing work at his current job to give the worker routine, and Dr Jawaad documents ongoing psychological issues but continues to certify the applicant with capacity for 10 hours per day. The vocational options were said to have work from home capability.
The respondent submits that although there is evidence from a psychologist and a psychiatrist, there is a lacuna in the worker’s evidence – there is no evidence regarding his capacity to work. No psychiatrist has commented on Mr Dutt’s capacity for employment based on his psychological needs, and the evidence before me is based on his physical needs. Dr Dias records that Mr Dutt is capable of working as a call centre operator, Dr Tame supports the return to work as an apprentice, Dr Jawaad supports his return to capacity.
A brief reference was made to Dr Tame’s report noting bullying in his new role potentially being a new injury, although that was not explored in any detail.
The respondent submits that the decision must be made on the evidence before me. The evidence does not establish an incapacity from a psychological point of view, and the general practitioner and treating specialists say he should return to work as an apprentice. The respondent submits I should affirm the previously made work capacity decision.
Applicant in response
In response, the applicant submits that it is important to look at the certificate of Dr Jawaad on page 246 of the Application, which references anxiety, difficulty sleeping, a need for medication and a psychiatric review. The capacity is certified in the context of concerns about psychological welfare and wellbeing.
On pages 251-252 of the Application there was a reference to anxiety and depression, and factors effecting recover being psychological, problems with sleep, ongoing pain with headaches. A reference was made to a CT scan.
The applicant submits that there are concerns about Mr Dutt’s psychological health, all of which would affect his ability to concentrating. It was noted that Mr Dutt doesn’t really like his current job but is continuing to do it.
Respondent in response
These were not really treated as submissions in response, but the respondent helpfully noted that if I were to make an award for the applicant, as he was working for over 15 hours per week he would be entitled to weekly payments at 95% of the pre-injury average weekly earnings (PIAWE), pursuant to s 37(2) of the 1987 Act.
DISCUSSION
The definition of suitable employment in s 32A of the 1987 Act contains a list of relevant matters for consideration.
The nature of the incapacity
There is no doubt that the incident that led to Mr Dutt’s injury was serious. There is medical evidence that shows that the effects of Mr Dutt’s injury, both physically and mentally, are ongoing. However, the question before me concerns the nature of the incapacity and whether Mr Dutt has capacity for suitable employment as identified in the section 78 notice and supporting material. The focus of the parties’ submissions, and the role relied on in the section 78 notice primarily, was that of call centre operator, and my discussion will focus on that role.
The definition of suitable employment under s 32A requires me to consider the “details provided in medical information”. The difficulty in this matter is that the medical information does not support the assertions made in the applicant’s submissions, particularly regarding Mr Dutt’s ongoing psychological health.
I accept that Mr Dutt has had recent interactions with mental health professionals. He has been recommended psychopharmacology by Dr Jawaad but has refused to undertake that route. He attended Dr Jensen, a consultant psychiatrist, for a first session as recently as 25 May 2022.
The problem I have with accepting the applicant’s case, from the point of view of considering Mr Dutt’s capacity, is that none of this evidence discusses Mr Dutt’s capacity in any way. Dr Jensen encourages Mr Dutt to continue his current work as an apprentice as it gives “routine/structure/distraction”. She does not suggest that he has less capacity than certified or found in the section 78 notice.
The above is emphasised by the report of Dr Dias. He provides a comprehensive report considering the history of injury, treatment since, and his current presentation. However, Dr Dias is an occupational physician and his report focuses on the ongoing physical effects of the work injury. It discusses capacity from that point of view, and Dr Dias expresses doubts about the suitability of the ongoing role as an apprentice. He notes the psychological problems, but states “Mr Dutt’s psychiatric injuries should be evaluated by an independent psychiatrist for diagnostic clarity”. That diagnostic clarity (and consideration of capacity from a psychological point of view) is missing from the evidence before me. The applicant did not take the opportunity to obtain further evidence.
Dr Dias concludes by stating that “Mr Dutt is capable of working as a call centre operator or as a sales assistant within the restrictions mentioned above”. He does acknowledge Mr Dutt’s psychiatric injuries and admits that it is “possible” that the injuries might preclude him from working as a call centre operator, but that evidence is not conclusive. He recommends again that he be evaluated by a consultant psychiatrist.
Dr Dias’ evidence, at its highest, suggests further investigation. I am required to consider the medical information but Dr Dias does not add to the medical information from a psychological point of view. He accepts that Mr Dutt is capable of work as a call centre operator from a physical point of view. To accept Dr Dias’ evidence going to capacity from a psychological point of view would be to accept something entirely theoretical or hypothesised, rather than the actual state of affairs.
One can have a psychological condition and still be able to perform suitable duties. The mere existence of evidence showing a psychological condition is not sufficient – when considering the definition of suitable employment in s 32A, one must have regard to evidence going to the “nature of the worker’s incapacity”. The applicant has not provided sufficient evidence to satisfy their onus that the work capacity decision should be overturned. The worker has presented very little evidence on that point at all.
The applicant’s submissions made much of the ongoing psychological symptoms the worker presents with. These include ongoing anxiety, difficult sleeping, and nightmares. The applicant referred to various parts of Mr Dutt’s statement in that regard. Again, I accept that these symptoms may be present in the worker. There is support for the existence of these symptoms in the report of Dr Jensen, who notes that Mr Dutt “appears to have some anxiety related to event”, Dr Jawaad, who has recommended psychopharmacology, and Dr Tame, who recommends psychological and psychiatric interventions.
What is missing from the medical information is how those symptoms translate to an incapacity. I must be guided by the evidence provided by the parties in making my determination and in this matter, the evidence is insufficient to show that Mr Dutt has a psychological incapacity for the roles identified, in particular the role of call centre operator.
The respondent submits that the worker’s symptoms were considered holistically when the vocational assessment was conducted. Although somewhat of a vague submission, I do agree and accept that the vocational assessment report considered Mr Dutt’s psychological symptoms. In terms of concentration, it was noted that Mr Dutt has some difficulty concentrating and has nightmares about the attack. In terms of psychosocial changes it was noted:
“Mr Dutt advised that his mental health suffered due to his injury and the Workers Compensation process. Mr Dutt advised that he has been told by his psychologist that he may be suffering from Post-Traumatic Stress Disorder (PTSD). Mr Dutt advised that he does not believe he is suffering from PTSD, and does not believe that psychological treatment is very beneficial”.
I also note that Dr Jawaad, who is aware of Mr Dutt’s psychological issues and has recommended psychopharmacological intervention, approved the role of call centre operator as being suitable. I find this persuasive. Further, Dr Tame and Dr Jensen support a return to work.
There was some dispute about whether Mr Dutt could perform the duties of a call centre operator due to his reported difficulties with concentration. There is comment regarding these difficulties in Mr Dutt’s statement and in the vocational assessment report. Again, there is insufficient evidence to demonstrate how this would affect Mr Dutt’s capacity. It may be that he has lapses of concentration from time to time, but without more, I do not think that it precludes him from working as a call centre operator.
I find that Mr Dutt has capacity to work in suitable employment as a call centre operator, having regard to the nature of his incapacity as detailed in the medical information discussed above.
The worker’s age, education, skills and work experience
Little attention was paid to this aspect of the consideration of the definition in suitable employment in s 32A of the 1987 Act. There does not appear to be any dispute that Mr Dutt could perform the role from a skills point of view.
DECISION
Mr Dutt appears as a genuine young man who was exposed to a traumatic event with physical and psychological consequences. To his great credit, he has returned to work in a new career, and is currently gaining experience as an apprentice.
The respondent has determined that Mr Dutt is capable of working in suitable employment as a call centre operator. In considering this work capacity dispute, I am to have regard to certain matters as outlined in s 32A of the 1998 Act. I have discussed those matters above. As can be seen, the dispute in this case largely concerns the medical issues going to the nature of Mr Dutt’s incapacity.
Mr Dutt has the onus to prove his case in the Commission. In this matter, there is simply insufficient medical information for me to make a finding of no capacity, or capacity equal to Mr Dutt’s current employment as an apprentice. The medical evidence that discusses capacity largely concerns Mr Dutt’s physical symptoms, and supports the role of call centre operator as being suitable. The certificate of capacity is consistent with the duties required in the role, and the worker’s treating general practitioner has approved it as being suitable.
Whilst the medical information acknowledges that Mr Dutt has some ongoing psychological sequelae from his injury, that information does not properly discuss his capacity for suitable employment.
Accordingly, the work capacity decision is correct and I decline to make an interim payment direction.
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