Dziaman v Tonic Health Media Limited
[2021] NSWPIC 316
•31 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dziaman v Tonic Health Media Limited [2021] NSWPIC 316 |
| APPLICANT: | Katherine Dziaman |
| RESPONDENT: | Tonic Health Media Limited |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 31 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits resulting from psychological injury sustained in the course of employment with the respondent; Held – the applicant had no current work capacity between 18 December 2020 and 4 February 2021 and the respondent is to make payments of weekly compensation under section 37(1)(b) of the 1987 Act; the applicant had a current work capacity (20 hours each week) between 5 February 2021 and 15 April 2021 and the respondent is to make payments of weekly compensation under section 37(3)(a) of the 1987 Act. |
| NOTES: | 1. It is not disputed the applicant sustained primary psychological injury during the course of her employment with the respondent (with a deemed date of injury of 1 December 2019) and was in receipt of weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 up until 18 December 2020. |
| DETERMINATIONS MADE: | 2. The applicant’s pre-injury average weekly earnings are $4,750.69. The applicant’s pre-injury hourly rate was $126.685. 3. The applicant had no current work capacity resulting from the psychological injury she sustained, between 18 December 2020 and 4 February 2021. The applicant has an entitlement to weekly compensation payable under s 37(1)(b) of the Workers Compensation Act 1987 at the maximum weekly compensation amount, that is $2,242.20, during the period 18 December 2020 and 4 February 2021. 4. The applicant had current work capacity (20 hours each week) resulting from the psychological injury she sustained, between 5 February 2021 and 15 April 2021. The applicant has an entitlement to weekly compensation payable under s 37(3)(a) of the Workers Compensation Act 1987 at the rate of $1,266.85, during the period 5 February 2021 and 15 April 2021. 5. The applicant’s claim for permanent impairment compensation resulting from the psychological injury she sustained, as agreed, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The deemed date of injury is 1 December 2019. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 26 July 2021 lodged on behalf of the applicant and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Between 31 January 2017 and 15 July 2020 Katherine Dziaman (Ms Dziaman) was employed with Tonic Health Media Limited (THM) in the capacity of chief financial officer. She commenced part time employment in the capacity of chief financial officer with an alternate employer on 15 April 2021.
Ms Dziaman sustained primary psychological injury during the course of her employment with THM. The deemed date of injury is 1 December 2019.
Ms Dziaman has been paid weekly benefits under s 36 and s 37 of the Workers Compensation Act 1987 (the 1987 Act) up until 18 December 2020 and her claim for compensation which came before the Commission for determination involved the following:
(a) weekly compensation payable under s 37 of the 1987 Act from 18 December 2020 to 15 April 2021, and
(b) permanent impairment compensation payable under s 66 of the 1987 Act for 16% whole person impairment (WPI).
Ms Dziaman’s claim is declined and she has been issued notices dated 24 November 2020, 18 December 2020, 24 December 2020 and 31 March 2021 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). While injury was initially placed in issue, THM ultimately conceded injury. However, Ms Dziaman’s capacity for work during the short period claimed remained in issue, as did her entitlement to permanent impairment compensation.
ISSUES FOR DETERMINATION
The parties agreed the following issues remained in dispute:
(a) Ms Dziaman’s capacity for work during the period of her claim for weekly compensation, and
(b) Ms Dziaman’s entitlement to permanent impairment compensation.
The parties agree the following issues are not in dispute:
(a) Ms Dziaman sustained primary psychological injury during the course of her employment with THM, with a deemed date of injury of 1 December 2019, and
(b) any entitlement Ms Dziaman has to weekly compensation is capped at $2,242.40, being the maximum weekly compensation amount.
PROCEDURE BEFORE THE COMMISSION
Ms Dziaman’s claim for compensation came before the Commission for teleconference on 12 July 2021 before Member Isaksen. Mr Griffith, solicitor appeared for Ms Dziaman, and Mr Bell, solicitor appeared for THM. Mr Lacsina and Ms Hollins from EML were also
present. As Ms Dziaman’s claim did not resolve on this occasion, it was listed for conciliation/arbitration hearing before me on 4 August 2021.At the conciliation/arbitration hearing on 4 August 2021, Mr Goodridge of counsel appeared for Ms Dziaman, instructed by Mr Griffith. Ms Compton of counsel appeared for THM, instructed by Mr Bell. Mr Lacsina and Mr Cheung from EML were also present, as was Ms Dziaman.
Following my discussions with counsel, I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
10.The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 26 July 2021 lodged on behalf of Ms Dziaman and attached documents (A AALD).
Oral evidence
11.Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of evidence
12.A brief summary of evidence follows.
Statements of the applicant
13.Ms Dziaman relied on two statements, which are dated 20 August 2020[1] and 8 June 2021[2].
[1] ARD at page 1 and A AALD at page 6.
[2] ARD at page 15.
14.While Ms Dziaman’s initial statement is perhaps of limited assistance as it predates the period of her claim for weekly compensation by some four months, it is apparent that at the time of making this statement, Ms Dziaman was consulting with her treating psychologist, Ms Weekes, on a weekly basis and her treating psychiatrist, Dr Cotiga, on a fortnightly basis. She was taking anti-depressant medication.
15.At that time of making this statement Ms Dziaman said:
“I feel consistently tired, weak, uncoordinated, slow and find it difficult to focus. I have low energy levels and feel that I need to rest of (sic) sleep before doing anything.
I have no motivation to do anything and feel empty inside. I feel sad and sometimes wish I wasn’t here. I’m not engaging in any social activity as I don’t feel like speaking with or seeing my friends and family.
I used to be a perfectionist and always presented myself immaculately but now I don’t care about anything”.
16.In her subsequent statement, Ms Dziaman, which post-dates the period of her claim for weekly compensation by nearly two months, Ms Dziaman confirmed that while she continued to consult with Ms Weekes on a weekly basis, her consultations with Dr Cotiga were now approximately every six weeks. She continued to take anti-depressant medication.
17.At the time of making this subsequent statement Ms Dziaman said:
“I continue to experience anxiety, depression, nightmares, sleep disturbance, panic attacks, poor self-confidence and social isolation.
…
I currently struggle with focus and other than my part time work I have no ability to do anything else. Upon finishing my work, I find that I am in bed by 8pm due to feeling exhausted.On the days where I am required to attend the office where I work, my husband will walk me to my workplace and in evenings he will drive and pick me up from work to take me home.
….
On 15 April 2021, I commenced employed (sic) on a part time basis working three days per week as a chief finance officer with an alternate employer. I continue to experience ongoing psychological symptoms and continue to be permanently partially incapacitated for work.”
Financial information
18.Payslips relevant to Ms Dziaman’s employment with THM[3] demonstrate that her annual salary was $247,036 with her pre-injury average weekly earnings (PIAWE) calculated at $4,750.69. Her hourly rate is noted on the payslips at $126.685.
[3] ARD at pages 144 and 145.
Treating medical evidence
City Medical Practice
19.Dr Errington, Dr Savic-Urosevic and Ms Weekes all practice out of City Medical Practice.
20.The clinical records of City Medical Practice[4] demonstrated Ms Dziaman initially consulted Dr Savic-Urosovic on 16 December 2019 with complaint of psychological symptoms resulting from workplace incidents and received referral to Ms Weekes for psychological review. With Ms Dziaman remaining symptomatic, on 14 May 2020 she received a referral to Dr Cotiga for psychiatric review. Such referral was made at the suggestion of Ms Weekes.
[4] ARD at page 86.
21.It is evident from the clinical records that Ms Dziaman consulted with her general practitioners with complaint of psychological symptoms throughout 2020. On 15 October 2020 Dr Errington made a note that indicated Ms Dziaman had commenced looking for work but was “[N]ot ready for face to face as yet”. Ms Dziaman was continuing to consult with Ms Weekes and Dr Cotiga and her medication remained under review. On 5 November 2020 Dr Errington noted Ms Dziaman had progressed with her job searching activity and wrote:
“- Has had interviews plus recriutment (sic) discussion
- Yesterday and last week
- For part time
Waiting to hear
Looks well today
- Not as stressed to day
…
Reasonable to become more engaged in the workplace”
On review on 26 November 2020 Dr Errington noted Ms Dziaman’s medication remained under review by Dr Cotiga. On 15 January 2021 Dr Treloar noted her concentration and motivation levels remained low and Ms Dziaman remained under the care of Ms Weekes and Dr Cotiga.
22.In a report dated 13 May 2021[5] addressed to Ms Dziaman’s solicitors, Dr Errington confirmed that during consultations Ms Dziaman “often appeared agitated and very upset”. He provided diagnosis in terms of “new onset depression with anxiety and associated panic attacks” and described her treatment plan in the following terms:
[5] ARD at page 84.
“Psychological input from psychologist in addition to medication. As the situation progressed and the response was to medicaitons (sic) was insufficient, psychiatric input was indicated. A GP Mental Health Plan was arranged on 3/2/21 to ensure ongoing access to psychological support after the patient’s WorkCover claim was rejected”.
23.While Dr Errington appeared reluctant to provide opinion relevant to Ms Dziaman’s capacity for work in circumstances where he was not a specialist in psychology or psychiatry, he was able to provide opinion “as a genealist (sic)” that a graduated return to work in an environment away from THM “would be a good way to re-enter the workplace”. He felt this “would be a very reasonable strategy to produce the best results”.
24.Following referral from Dr Savic-Urosevic on 16 December 2019, Ms Dziaman came under the psychological care of Ms Weekes, with Ms Weekes relevantly reporting to Ms Dziaman’s solicitors on 27 April 2021[6].
[6] ARD at page 50.
25.In this report referred, Ms Weekes confirmed that at her initial assessment “and subsequently throughout our lengthy association, Ms Dziaman’s mental state was characterised by sleep disturbance, pervasively lowered mood, panic attacks (day and night), loss of self-confidence, poor self-care, social withdrawal and nihilistic thought.”. Ms Weekes also noted suicidal ideation from time to time.
26.Ms Weekes provided diagnosis “throughout” as Major Depression associated with anxiety, and noted the overall level of distress and anxiety suffered by Ms Dziaman prevented any meaningful and effective cognitive behaviour therapy (CBT). She said her role as psychologist was essentially limited to support and symptom monitoring. Ms Weekes provided comment Ms Dziaman always seemed too distracted or fatigued to undertake either the CBT homework she gave her or the online course she recommended to her.
27.In response to specific questioning about Ms Dziaman’s capacity for work, Ms Weekes said:
“I am aware that Ms Dziaman has had difficulties with concentration and self-esteem relating to her presentation. She has found the interview process very stressful, and I note that the treating psychiatrist Dr Laura Cotiga told Ms Dziaman late 2020, that it was too early to begin searching for new employment because medication had not achieved symptom remission.
I supported commencing job search but in the spirit of practice runs only. I suggested to only consider a part time role, allowing for ongoing therapy.”
28.Relevant to prognosis Ms Weekes provided opinion:
“I have seen very little improvement after eighteen months of treatment. In fact, I have sadly observed a deteriorating course even with co-operative treatment team including a psychiatrist who is still making adjustments to Ms Dziaman’s medication…”
29.Ms Weekes again reported to Ms Dziaman’s solicitors on 26 July 2021[7] with specific reference to Ms Dziaman’s consultations with her between 16 December 2019 and 4 February 2021, the latter date being Ms Dziaman’s last consultation with her. It appeared that at the suggestion of Dr Cotiga, Ms Dziaman’s psychological care was going to be transferred to a psychologist who specialised in Acceptance and Commitment Therapy. In response to specific questioning about Ms Dziaman’s capacity for work during the period of her claim for weekly compensation (being between 18 December 2020 and 15 April 2020) Ms Weekes said:
[7] A AALD at page 1.
“In my consultation with Ms Dziaman on 4/2/2021 she informed me that she was actively looking for work as a Financial Officer on a part-time basis of three to four days per week. She named two companies who had offered her interviews. I considered at that time that she was ready for part-time work of 2-3 days per week but cautioned against full-time work as she was still on quite strong antidepressant medication which may have affected her attention and alertness”.
30.Ms Weeks further said that in a brief teleconference with Ms Dziaman on or about 27 April 2021, Ms Dziaman had told her that she had commenced part-time work as a financial officer and had said “she found the work very draining and was still not sleeping well although she was still taking her prescribed anti-depressant medication”. Ms Weekes noted Ms Dziaman continued to consult with her general practitioners and Dr Cotiga.
Dr Cotiga
31.Following referral from Dr Savic-Urosevic on 14 May 2020 Ms Dziaman came under the psychiatric care of Dr Cotiga, with initial assessment by Zoom on 26 June 2020. Dr Cotiga reported the same day[8]. Dr Cotiga reported Ms Dziaman as being quite symptomatic at that time, with suicidal ideation. Dr Cotiga diagnosed Ms Dziaman with Major Depressive Disorder and Anxiety Disorder with Panic Disorder, increased the dosage of her anti-depressant medication and discussed with her the possibility of a private admission. At the time of initial assessment Dr Cotiga felt Ms Dziaman was totally incapacitated for work “given the severity of her symptoms”.
[8] ARD at page 36.
32.It is apparent form Dr Cotiga’s subsequent reports that there were difficulties with Ms Dziaman’s anti-depressant medication, and in a report dated 18 December 2020[9] Dr Cotiga again discussed with her the possibility of a private admission “given the difficulty in management with not tolerating a number of medications and with modest improvement in symptoms”.
[9] ARD at page 46.
Independent medical evidence
Dr Bisht
33.Ms Dziaman was assessed by Dr Bisht in his capacity as independent examiner on 7 October 2020 with Dr Bisht reporting the same day[10]. Dr Bisht reported that at the time of assessment Ms Dziaman said there had only been a partial improvement in her psychological symptoms “over the last few months”. She relevantly said at that time:
[10] Reply at page 13.
“I wake up pretty much every day at 2 o’clock and then I keep thinking. Also, I have nightmares, and I often wake up punching. I still lack motivation. I still am not interested in things. I still get nervous easily, like when my husband asks when I have done something, or if I have to make a call
I still don’t like to see friends
…
I want to get back to work but I also am very nervous about going back to work
…
I am looking for jobs, even though my psychiatrist said that I shouldn’t be looking for jobs. I have applied for a few jobs but only via email.I try to read. I am still slow in getting tasks delivered.”
34.Dr Bisht provided diagnosis of adjustment disorder with mixed and anxious mood, with clinically significant symptoms noted to include “significant impairment in social, occupational or educational functioning”. However, in response to specific questioning relevant to Ms Dziaman’s capacity for work, Dr Bisht was of the view Ms Dziaman could work four hours a day for four days a week “in a job that did not require the worker to interact with unfamiliar people, or make complex decisions/sustain intense concentration for long periods”. Although he provided an example of “such a job” to be a data entry job, Dr Bisht conceded Ms Dziaman would require vocational assessment for a more accurate assessment of her work options. He did not consider Ms Dziaman could return to work with THM.
35.While Dr Bisht provided a supplementary report dated 3 November 2020[11] this report is not relevant to the issue that has come before the Commission for determination.
[11] Reply at page 21.
Dr Gertler
36.Ms Dziaman was assessed by Dr Gertler, psychiatrist, in his capacity as independent medical examiner on 9 March 2021 and Dr Gertler provided a report dated 12 March 2021[12]. Dr Gertler recorded Ms Dziaman’s complaints at assessment in the following terms:
[12] ARD at page 30.
“Ms Dziaman describes a poor sleep pattern. She is frequently awake, has nightmares related to her work and other situations and can become quite violent as a result of these nightmares, lashing out in her sleep.
Her appetite is fair but she has gained weight and this has affected her self-image.
Her concentration is poor. She tends to be indecisive and is no longer a self-starter. She has a short attention span and cannot read for prolonged periods of time. She has become forgetful.
Panic attacks still occur but are less frequent and generally occur only during the day.
Her self-confidence is poor. She feels ‘pretty bad’, is sad and has nihilistic thoughts.
She describes a loss of self-esteem and a certain loss of her identity, given that she has always been a high achiever and has enjoyed her work”.
37.Dr Gertler noted that Ms Dziaman continued to consult with Ms Weekes on a weekly basis and Dr Cotiga every six weeks. He noted too that she continued with anti-depressant medication.
38.Dr Gertler relevantly reported that while Ms Dziaman “continues to look for suitable employment; she has had several interviews but has been unsuccessful”.
39.Dr Gertler provided diagnosis of major depressive disorder with associated anxiety. In response to specific questioning regarding prognosis, Dr Gertler expressed opinion in the following terms:
“Prognosis remains uncertain. Ms Dziaman’s psychiatric condition has improved but remains disabling to some extent with obvious impairment.
She will require continuing treatment of a psychological and psychiatric nature as at present for the next 12 months until she has been able to return to suitable employment.
In the longer term it is difficult to determine whether the loss of self-confidence which she now displays can be overcome in a more positive workplace”.
40.Relevant to Ms Dziaman’s attempts to find employment, Dr Gertler reported:
“She has found the interviews to be stressful and that she can have difficulty coping with them, because of her poor concentration and also her level of agitation which does not lead to a positive presentation”.
41.This said, Dr Gertler went on to provide opinion that with support of her treaters, Ms Dziaman was capable of a graduated return to part time work “until she feels settled and supported in her new environment”. Relevant too to his assessment of 16% WPI resulting from the primary psychological injury she had sustained during the course of her employment with THM Dr Gertler provided opinion Ms Dziaman was capable of working 20 hours each week “in a supportive environment and as part of a graduated return to work program”.
Submissions
42.Both counsel made oral submissions which I have considered. A copy of the recording of counsels’ submissions is available to the parties. I am grateful to counsel for the assistance provided in navigating the evidence of relevance before the Commission.
Determination
Capacity
43.It is not disputed Ms Dziaman sustained primary psychological injury during the course of her employment with THC with a deemed date of injury of 1 December 2019, and I note Ms Dziaman was in receipt of weekly compensation until 18 December 2020. What is disputed is whether Ms Dziaman had a total or partial incapacity for work resulting from her psychological injury referred during the period that bridged the cessation of payment of her weekly compensation on 18 December 2020 and the commencing of part-time employment in the capacity of chief financial officer with an alternate employment on 15 April 2021.
44.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 incapacity”.
45.Section 32A of the 1987 Act provides multiple definitions that are crucial to the interpretation of the weekly compensation provisions in the Act, including definition of the second entitlement period, which is governed by s 37 of the 1987 Act. The provisions of s 37 of the 1987 Act requires consideration as to whether a worker does or does not have ‘current work capacity’, which is also defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”.
46.Assessment of Ms Dziaman’s capacity for work between 18 December 2020 and 15 April 2021 involves consideration as to whether during that period she had no current work capacity or had a current work capacity as defined by s 32A of the 1987 Act. This requires consideration of her capacity to undertake not only her pre-injury employment, but also her capacity to undertake suitable employment, irrespective of its availability. This was accepted in Wollongong Nursing Home Pty Ltd v Dewar[13].
[13] [2014] NSWWCCPD 55.
47.Dr Errington provided opinion Ms Dziaman would be unable to return to her pre-injury employment with THM, as did Dr Bisht. Ms Weekes, Dr Cotiga and Dr Gertler provided no comment on this particular issue.
48.As to whether Ms Dziaman was able to return to work in suitable employment during the period 18 December 2020 to 15 April 2021 I note the following:
(a) Following assessment as early as 7 October 2020 Dr Bisht reported that while Ms Dziaman was engaged in job seeking activity, this was against the advice of Dr Cotiga. At the time of assessment Dr Bisht considered Ms Dziaman was fit to work four hours each day, four days a week in suitable employment and gave an example of such suitable employment as data entry. It cannot be argued that such suggested suitable employment is a far cry from her pre-injury employment as a chief financial officer.
(b) On 5 November 2020 Dr Errington noted Ms Dziaman had progressed with her job seeking activity and he felt it was reasonable for her “to become more engaged in the workplace”.
(c) In her report dated 18 December 2020 Dr Cotiga noted both Ms Dziaman’s continuing difficulties with her medications and only modest improvement in her symptoms. Dr Cotiga again discussed with Ms Dziaman the possibility of a private admission, which she had initially canvassed with her nearly six months’ earlier.
(d) On review on 15 January 2021 Dr Treloar formed the impression Ms Dziaman was suffering from anxiety with insomnia and noted she remained under both psychological and psychiatric care.
(e) In her report dated 27 April 2021, Ms Weekes noted Ms Dziaman had found the interview process (which was pertinent to her job seeking) “very stressful” and noted too Dr Cotiga had told Ms Dziaman in late 2020 that her job seeking was premature. In her subsequent letter dated 26 July 2021, Ms Weekes noted that during consultation on 4 February 2021 Ms Dziaman had told her she was job seeking with a view to securing a position as financial officer on a part-time basis three to four days each week. Ms Weekes was in agreement Ms Dziaman could work in such a position on a part-time basis, but only two to three days each week. Ms Weekes cautioned against full time employment as Ms Dziaman was taking antidepressant medication “which may have affected her attention and alertness”. Ms Weekes further reported that during a brief telephone conversation with Ms Dziaman on or about 27 April 2021, Ms Dziaman told her she was finding the part-time employment she had secured “very draining” and she was not sleeping well.
(f) Following assessment on 9 March 2021, Dr Gertler reported that while Ms Dziaman was engaged in job seeking and had had several interviews, she had yet to secure a position. Dr Gertler too reported Ms Dziaman had found the interview process pertinent to job seeking very stressful. At the time of assessment, Dr Gertler provided opinion Ms Dziaman was capable of working 20 hours each week “in a supportive environment and as part of a graduated return to work program”.
49.I accept that during the period 18 December 2020 to 15 April 2021 Ms Dziaman was not able to return to her pre-injury employment with THM. Both Dr Errington and Dr Bisht have said as much, and I have no reason not to accept their opinions on this issue.
50.I also accept that at some stage during the period 18 December 2020 to 15 April 2021 Ms Dziaman was able to return to suitable employment. While Dr Bisht provided opinion as early as 7 October 2020 that Ms Dziaman had capacity to return to suitable employment for 16 hours each week and suggested data entry as a suitable job, it is evident that even at that point in time Ms Dziaman’s mental health was significantly fragile and she understandably struggled with her job seeking activities and the resulting interview process. It is also evident from the subsequent reporting of Ms Weekes, Dr Cotiga, Dr Treloar and Dr Gertler that Ms Dziaman’s mental health remained significantly fragile right up until she was successful in securing the position which saw her commencing on 15 April 2021 her current employment as a chief finance officer on a part-time basis. In such circumstances I accept Ms Dziaman had no current work capacity until 4 February 2021, being the day her treating psychologist, Ms Weekes, provided opinion Ms Dziaman could return to work as a financial officer on a part-time basis for 2-3 days each week. Having regard to this opinion provided by Ms Weekes and also that of Dr Cotiga, who discussed possible private admission with the applicant as late as 18 December 2020, and Dr Gertler, who said Ms Dziaman was fit for part-time work “in a supportive environment and as part of a graduated return to work program” as late as 9 March 2021, I have achieved a “comfortable satisfaction”[14] in reaching my decision. Both Ms Dziaman’s treating psychologist and treating psychiatrist who continued to treat her after Ms Dziaman was assessed by Dr Bisht, and the independent medical examiner specialising in psychiatry who assessed Ms Dziaman some five months after Dr Bisht, have provided opinions which confirm that for some length of time after her assessment with Dr Bisht Ms Dziaman’s mental health continued to be significantly fragile and interfered with her day to day functioning.
[14] Briginshaw v Briginshaw (1938) 60 CLR 336.
51.‘Suitable employment’ is relevantly defined 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 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
the worker’s place or resident.”
52.Both counsel accepted Ms Dziaman’s current work capacity did not immediately commence at the time she commenced her new role as part time chief financial officer. Both counsel accepted that following a period of no current capacity for work there would have been a progressive increase in Ms Dziaman’s current capacity to work until such time as she secured her current part-time employment as a financial officer with an alternate employer.
53.While I am mindful that in early October 2020 Dr Bisht provided diagnosis of adjustment disorder, which is generally a self-limiting disorder, I note Ms Weekes, Dr Cotiga and Dr Gertler provided diagnosis of major depression. I note too that Ms Dziaman remained under psychiatric care and was still taking anti-depressant medication when she was assessed by Dr Gertler in early March 2021. Having considered Ms Dziaman’s reported inability to undertake her pre-injury role with THM and her reported ability to undertake suitable employment (irrespective of its availability), on the balance of probabilities, I accept that between 19 December 2020 and 4 February 2021 Ms Dziaman had no current work capacity and thereafter she had current work capacity in suitable employment for 20 hours each week (being approximately three days each week).
54.While Ms Dziaman has now secured part-time employment as a chief financial officer with an alternate employer, for which she is to be commended, there is no evidence before the Commission particularising her current remuneration. However, there is evidence before the Commission that Ms Dziaman’s PIAWE was $4,750.69 and her hourly rate was $126.685. There is also acceptance by the parties that any entitlement Ms Dziaman has to weekly compensation is to be capped at the maximum weekly compensation rate of $2,242.20.
55.In the absence of any evidence before the Commission particularising Ms Dziaman’s current remuneration, I accept that in the period between 4 February 2021 and when Ms Dziaman commenced her new role as part time financial officer with an alternate employer on 15 April 2021 she would have been able to earn an hourly rate similar to the hourly rate she earned with THM (that is $126.685).
Quantification of entitlement to weekly compensation
56.Ms Dziaman’s PIAWE is $4,750.69. Her pre-injury hourly rate was $126.685. The parties agree any entitlement Ms Dziaman has to weekly compensation is capped at $2,242.20, being the maximum weekly compensation amount.
57.Between 18 December 2020 and 4 February 2021 Ms Dziaman has an entitlement to weekly compensation payable under s 37(1)(b) of the 1987 Act at the maximum weekly compensation amount, that is $2,242.20.
58.Between 5 February 2021 and 15 April 2021 Ms Dziaman has an entitlement to weekly compensation payable under s 37(3)(a) of the 1987 Act at the rate of $1,266.85:
$4,750.69 x 80% - $2,533.70 = $1,266.85.
Permanent impairment
59.It is not disputed Ms Dziaman sustained primary psychological injury during the course of her employment with THC with a deemed date of injury of 1 December 2019 and the parties agree Ms Dziaman’s claim for permanent impairment compensation resulting from such injury is to be remitted to the President for referral to a Medical Assessor for assessment of WPI.
60.The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) A AALD and attached documents.
SUMMARY
61.It is not disputed Ms Dziaman sustained primary psychological injury during the course of her employment with THC with a deemed date of injury of 1 December 2019. Ms Dziaman was in receipt of weekly compensation payable under until 18 December 2020 and commenced part time employment with an alternate employer on 15 April 2021.
62.Ms Dziaman’s PIAWE is $4,750.69. Her pre-injury hourly rate was $126.685.
63.Ms Dziaman had no current work capacity resulting from the psychological injury she sustained, between 18 December 2020 and 4 February 2021. Ms Dziaman has an entitlement to weekly compensation payable under s 37(1)(b) of the 1987 Act at the maximum weekly compensation amount, that is $2,242.20, during the period 18 December 2020 and 4 February 2021.
64.Ms Dziaman had current work capacity (20 hours each week) resulting from the psychological injury she sustained, between 5 February 2021 and 15 April 2021. Ms Dziaman has an entitlement to weekly compensation payable under s 37(3)(a) of the 1987 Act at the rate of $1,266.85, during the period 5 February 2021 and 15 April 2021.
65.Ms Dziaman’s claim for permanent impairment compensation resulting from the psychological injury she sustained, as agreed, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The deemed date of injury is 1 December 2019. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) A AALD and attached documents.
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