Forwarding and Logistics Services Australia Pty Ltd v iCare as agent of the Workers Compensation Nominal Insurer - [2021] NSWPIC 32

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Forwarding and Logistics Services Australia Pty Ltd v iCare as agent of the Workers Compensation Nominal Insurer [2021] NSWPIC 32
APPLICANT:	Forwarding and Logistics Services Australia Pty Ltd
FIRST RESPONDENT:	iCare as agent of the Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Murray Schultz
MEMBER:	Ms Elizabeth Beilby
DATE OF DECISION:	19 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Reimbursement pursuant to section 145 of the 1987 Act; Held- psychological injury in circumstances of previous psychological treatment; consideration of current work capacity.
DETERMINATIONS MADE:	1. No defect in the Statutory Notice has been identified. 2. The second respondent suffered a psychological injury whilst employed with the applicant employer. 3. The worker has suffered an incapacity resulting from that injury. The worker had no current work capacity from 22 May 2019 until 2 April 2020. From 2 April 2020 the applicant had a capacity to work in suitable employment for 20 hours per week earning $28 an hour ($480 per week). 4. The expenses incurred in preparation of a Vocational report do not constitute valid expenses pursuant to s60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Murray Schultz (the respondent worker and second respondent) was employed by Forwarding and Logistics Services Australia Pty Ltd (the applicant employer) in a customer service type role.
He commenced employment informally on 29 March 2019 and formally on 15 April 2019. The applicant’s immediate supervisor and business owner was Martin Steppacher.
It was not in issue that the interactions between Mr Shultz and Mr Steppacher caused emotional distress to the respondent worker.
The applicant’s employment was terminated on 22 May 2019.
On 23 May 2019 the applicant attended his general practitioner Dr Zhou who recorded the diagnosis of anxiety and depression relating to his employment situation. The applicant then consulted a psychologist Ms Anne Grapsas on 24 May 2019.
A claim for workers compensation was made on 5 June 2019.
The applicant employer did not have workers compensation insurance and as such the first respondent commenced payments in respect of weekly compensation and medical expenses.
On 4 September 2020 a notice pursuant to section 145 of the Workers Compensation Act 1987 (the 1987 Act) seeking reimbursement of $97,736.90 was issued by Icare (the first respondent).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Is the Statutory Notice Defective?
(b)    Has the worker sustained an injury with the respondent?
(c)    What is the appropriate level of payment of weekly benefits and their duration?

PROCEDURE BEFORE THE COMMISSION

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

The following documents were in evidence before the Commission and considered in making this determination:

(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply to Application to Resolve a Dispute, and
(c)    Late documents dated 26 October 2020 (the first respondents reply), 10 December 2020, 18 December 2020 and 21 January 2021.

Oral Evidence

There was no application to adduce oral evidence.

Lay evidence

Murray Schultz- the respondent worker

The respondent worker has been candid in his statement dated 13 June 2019 about experiencing psychological distress prior to his employment with the applicant employer.
In 2006 the respondent worker separated from his wife and divorced in 2008. In 2012 he was diagnosed with post-traumatic stress disorder and was treated by a psychologist and his general practitioner.
The respondent worker says that despite some prior psychological difficulties, before commencing employment with Forwarding and Logistics Services Australia Pty Ltd he was generally fit and healthy.
The respondent worker was employed on a full-time basis in a customer service role. Whilst employed with the applicant the respondent worker’s duties included updating data, customer service and bi-weekly reports to customers regarding the whereabouts of cargo.
The respondent worker worked under the direct supervision of Manfred Steppacher, who was also the owner of the applicant company.
The respondent worker makes many allegations about his relationship with Mr Steppacher which include allegations of Mr Steppacher being mean, abusive, denigrating, sometimes scary, throwing things and rude.
There is a series of emails between the respondent worker and Mr Steppacher which do not disclose a good working relationship between the two men. The emails that caused the respondent worker distress appear to commence on approximately 4 April 2019 and continue until the respondent worker ceased work with the applicant employer.
The respondent worker’s employment was terminated on 22 May 2019. Whilst the formal employment relationship was terminated there was continued contact between the Mr Shultz and Mr Steppacher.
It is not necessary for me to delve into the contents of the relationship in circumstances where it was conceded by the applicant that the fractured relationship caused emotional upset for the respondent worker.
The respondent worker is also a musician and works on a casual basis in an Irish band. There is no claim for concurrent employment however some consideration needs to be given to the employment in terms of a capacity to work which will be discussed later.

Evidence of Manfred Steppacher

Mr Steppacher is the applicant employer in these proceedings. He has prepared a statement dated 13 January 2020.[1] Mr Steppacher does not agree with a lot of the factual allegations made by the respondent worker however it appears on his evidence to be conceded that there was some disagreement between himself and the respondent worker whilst employed.
[1] Page 13 of the Application
Mr Steppacher was clearly unsatisfied with the respondent worker and critical of his ability to fulfil the requirements of employment. He felt that Mr Shultz lacked the skill set to perform the role and couldn’t follow procedure and direction.
Mr Steppacher clearly rejected all assertions in relation to bullying and harassment of the respondent worker.

Statutory Recovery of Compensation

By section 142B(2) of the 1987 Act, the Commission may make orders providing for the reimbursement of the insurance fund pursuant to section 145.
In Ballantyne v WorkCover Authority of New South Wales[2] Basten J cited the judgment of Tobias JA in Raniere Nominees (No. 1)[3] where his Honour set out a number of propositions in relation to section 145 at [78]. In particular, he said:
“(6) In determining an application under (3), pursuant to the power conferred by (4a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of “compensation in accordance with this Act”, which would otherwise have been payable by the employer or its insurer, and also if the matter were in issue, determine whether the person served was indeed the relevant employer or insurer of such employer.”
[2] Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239
[3] Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121
The test for a Member therefore is to examine the evidence and to determine on the balance of probabilities whether the compensation that has been paid by the Nominal Insurer was paid in accordance with the Act.
I will now embark on that process.

FINDINGS AND REASONS

Is the Statutory Notice Defective?

By way of Statutory Notice dated 4 September 2020[4], the first respondent sought reimbursement pursuant to section 145 of the 1987 Act in the sum of $97,736,90. The notice specified the date of injury as 21 May 2019.
[4] First Respondents Reply page 1
It is trite to say that when a statutory claim is made that there must be a correct date of injury relied upon for the purpose of statutory recovery of compensation. That is there must not be a defect on the statutory notice.
The applicant submitted that the date of injury on the statutory notice, that is 21 May 2019, is not correct.
The respondent worker completed an uninsured liabilities claim form on 5 June 2019[5]. The claim form indicates the worker first became aware of his condition on 18 May 2019 and stopped work on 22 May 2019. The date of injury is indicated as 21 May 2019.
[5] Page 164 of the Reply
The claim form has a description of injury as follows:
“Over a period of 6 to 8 weeks I endured abuse and denigration, papers were thrown at me.”
The applicant submits that there is simply no evidence of any kind to connect any payments of compensation to an injury relied on by the first respondent being 21 May 2019.
The applicant points to various WorkCover Certificates where the date of injury is given as 29 March 2019. I do not find that anything of material significance turn on the date listed in a note from a general practitioner, is not determinative of a finding in respect of a date of injury.
What is abundantly clear from the claim form is that the respondent worker was making a claim based on abuse, bullying and harassment over a period of time. The last date of harassment was 21 May 2019 hence that is the appropriate date on the claim form.
The claim is not one which needs to be pleaded as an injury or an aggravation of an injury pursuant to section 16 and section 15 of the 1987 Act. What is clear also is that the terms “disease” and “personal injury” in section 4 are not mutually exclusive.[6]
[6] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 per Brennan CJ, Dawson and Gaudron JJ at 716
Gleeson CJ and Kirby J in Petkoska:[7]
“The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in a kind of sudden physiological change or disturbance of the normal physiological state that will constitute “injury” in the primary sense.”
[7] Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 at 40
Whilst this is a case that potentially could be argued to be disease, that is not what has been claimed by the respondents. If it were then clearly the date of injury would be a different date, namely the first day of incapacity.
No submissions were made by the applicant to support a finding of disease as opposed to an injury. In those circumstances it is difficult to make a positive finding that there was a disease process rather than a general injury.
In any event, it is also arguable that the incapacity commenced on 21 May 2019 given the onset of symptomatology causing an incapacity at that time.
I am therefore not persuaded that there is a defect on the statutory notice.

Injury

The issue in relation to injury, as articulated by Mr Macken who appeared on behalf of the uninsured employer, was that whilst it was not disputed that there may have been some discord between the applicant employer and respondent employee which caused distress, an injury (within the meaning of the 1987 Act) had not been sustained.
Section 4 of the 1987 Act provides the definition of injury in the following terms;
(a) means personal injury arising out of or in the course of employment,
(b) includes a
"disease injury", which means-
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease
In order to determine whether there has been an injury sustained, it is necessary for me to examine the medical material that has been filed.

Dr Miller

Dr Miller, Psychiatrist, has prepared a report dated 16 September 2019 at the request of the first respondent.[8]
[8] Page 58 the Application
Dr Miller took a history of the fractured relationship between Mr Shultz and Mr Steppacher and treatment that the respondent worker had undergone.
Dr Miller also took a history from the applicant regarding his symptomatology which included fluctuations in sleep. Crucially the respondent worker denied social withdrawal, helplessness and hopelessness. Mr Shultz also denied significant changes in cognitive function however continue to remain fearful of Mr Steppacher.
Dr Miller opined that the respondent worker was not suffering from any psychiatric injury and was rather involved in an ‘industrial dispute’. Therefore, it was his opinion that the respondent worker was immediately fit for his substantive duties or any alternative role.
The applicant relies upon the opinion of Dr Miller who they say is the first doctor to ’get it right’. He is the first psychiatrist to comment on the respondent worker’s condition post-injury and has found him to not have sustained a psychiatric injury.
It is submitted that iCare, ought to have declined liability and ceased payments altogether after receipt of the report. That is, in circumstances where iCare have elected to get a report from a qualified psychiatrist and then have refrained from acting on it in a manner that was appropriate.

Anne Grapsas

Anne Grapsas is a treating psychologist who has regularly treated the respondent worker. She has prepared a report dated 23 October 2019.[9] Ms Grapsas comments on the medical report of Dr Miller. Whilst she observes that Dr Miller concluded that the respondent worker did not demonstrate symptoms of any psychological disorder or anxiety or depression, she disagrees with his conclusion. She refers the reader to the previous report of 30 July 2019 which said the following:
“I first saw Mr Shultz on 24 May 2019 when he was referred by his GP as an urgent case. He presented in a most distressed state and freely admitted he was suicidal and the constant threats and harassment by his ex-manager had continued unabated even after he was made redundant.
The medical report then continues:
“I note that although Mr Shultz’ mental and emotional health has been improved markedly, he still demonstrates symptoms of anxiety and insecurity. For example, during our last session on 22 October 2019, he informed me that he had increased the security at his home based on the extra security cameras. He continues to feel terrified by his ex-manager making good on his threats.”
[9] Page 108 First Respondents Reply
In relation to work capacity, Ms Grapsas opines that she did not think that the respondent worker would be capable of working full-time duties in his previous position. Ms Grapsas observed that he was positive and determined to resume work as soon as possible and had listed himself with two recruitment agencies to facilitate this. The respondent worker however continued to feel uncertain and continued to experience severe mood swings and depression.
At page 19 of the first respondent’s Reply there is a pro forma document which has been completed by Ms Grapsas dated 10 July 2020. In relation to a question of whether the respondent worker has fitness for work Ms Grapsas indicated that the respondent worker is “unfit for work duties”. At question five, Ms Grapsas indicates that the respondent worker would be unable to return to his pre- injury employment however had contacted two recruitment agencies seeking similar employment though the pandemic had interfered with his chance obtaining employment. She also indicated that concentration was being placed on exploring options that may become viable and whether the applicant should up skill himself in preparation.
Ms Grapsas commented that when she first saw the respondent worker on 24 May 2019, he presented in a distressed state with suicidal ideation. He improves psychologically however there was a regression during November and December 2019 where the respondent workers suicidality became more pronounced a combination of cognitive behaviour therapy and intensive dynamic psychotherapy was used to address the anxiety, disrupted sleep patterns and constant fear that his physical safety was at risk. This fortunately had a good response where Mr Shultz became more optimistic and stable and options were discussed regarding part-time employment.
Ms Grapsas reports that in the past eight weeks the respondent workers’ condition had regressed where the applicant’s suicidal ideation had returned. The date of the report is 10 July 2020. The time period that Ms Crispus is referring to must be May and June 2020.
Ms Grapsas then at page 22 under heading 7 says the following:
“Mr Shultz’ recovery has been slow and inconsistent and continues to be closely monitored. From the outset he impressed as a highly motivated man keen to resume work as soon as possible. However, his recovery has been rather patchy, and he acknowledges that another failure would be catastrophic for him. He has made progress, but he is not mentally strong enough to resume duties similar to his previous employment on a full-time basis. I am most concerned that he has suffered a regression and his condition and outlook are disconcerting at this time.”
There is no doubt that is the opinion of the treating psychologist Ms Grapsas that Mr Shultz has suffered an injury arising from his employment with the applicant employer.

Dr Zhou

Dr Zhou is the treating general practitioner.
There are multiple attendances on Dr Zhou for treatment of the respondent worker’s condition. I will briefly outline the relevant entries.
On 25 July 2019 the respondent worker told Dr Zhou that his mood was improving however he was not sleeping well.
On 1 August 2019 the respondent worker told Dr Zhou he was feeling more creative, still had weird dreams and nightmares and his mood was not as anxious.
On 8 August 2019 the respondent worker told Dr Zhou that he still felt anxious and agitated with authorities however was spending time with his son and enjoying it.
On 22 August 2019 the respondent worker consulted with Dr Zhou after seeing
Dr Ingram that day and complained that he was not doing well, that is ADHD was contributing to him feeling very down, he was not focusing on problem-solving, making rash decisions and he went to court that day. The respondent worker was not sleeping well however sometimes sleeping 14 to 18 hours.
On the 29 August 2019 the respondent worker told Dr Zhou that he had seen Ms Grapsas that day and was aiming to look for part-time work in three to four weeks. The applicant felt calmer and less depressed.
On 12 September 2019 the respondent worker saw Dr Zhou after attending court and felt very tired. The respondent worker was planning to return to part-time work in two to three and had been spending time with his son however was still fearful of the applicant employer. The respondent worker was able to go out with his brother and have a good time.
On 17 October 2019 the respondent worker told Dr Zhou he been feeling more panicky hadn’t seen Ms Grapsas for two weeks and been out the last four days however had been away with some friends on the weekend. He’d experienced horrible dreams and had woken up at 2 am.
On 31 October 2019 the respondent worker told Dr Zhou he still felt tired and anxious. He felt too scared to go outside the house and it started looking for a job himself by talking to recruitment agency. At that stage the respondent worker said he was playing gigs twice a week.
On 14 November 2019 the respondent worker saw Dr Zhou and told her that the depression was getting better however felt lost. He been able to leave the house three times the last two weeks. Unfortunately, the respondent worker lost his music engagement with the Coach and Horses hotel and he felt upset about that loss. The respondent worker indicated he would be looking out for jobs.

On 28 November 2019 the respondent worker saw Dr Zhou and told her he felt lost. Sleep was sporadic however he felt calmer and didn’t have bad thoughts since commencing on Cipramil.
On 12 December 2019 the respondent worker saw Dr Zhou and felt that his mood was labile and felt affected by a friend who is depressed. He was sleeping well, some eight hours per night.
On 9 January 2020 the respondent worker saw Dr Zhou and reported an incident regarding a friend’ drinking issues. The respondent worker found himself in depression for at least two days and stayed in bed. He felt that he needed to attend the hospital and didn’t know how to go forward.
On 30 January 2020 the respondent worker saw Dr Zhou and Dr Zhou refer him to Dr Ingram (psychiatrist).
On the 20 February 2020 Dr Zhou indicates in the clinical notes that she rang Dr Kafataras, injury management consultant, concerning returning to work for 20 hours per week with suitable duties with a different employer, then increasing to 40 hours per week over the next few months. There is a referral in the entry on this date to Dr England, Psychiatrist, I have no understanding who Dr England is. There is no evidence before me regarding the treatment by Dr England.
On 2 April 2020 the respondent worker returned to see Dr Zhou after consulting with
Dr Ingram. The applicant reported that both Dr Ingram and Ms Grapsas thought he was not ready to return to work.
On 30 April 2020 the respondent worker saw Dr Zhou and reported that his sleeping pattern was not very good associated with headaches and his mood had been up and down. He felt that his memory was poor. He had seen Ms Grapsas and was feeling better however had had a psychotic moment.
On 14 May 2020 the respondent worker saw Dr Zhou and complained that anxiety was still a problem and he was feeling tired and slept two hours per day. So far as management was concerned Dr Zhou certify the respondent worker as being up to work five hours per day four days per week and encourage the applicant to avoid alcohol and increase exercise. The type of work indicated appropriate was towards sales support, not too high standard or self-employment jobs.
On 28 May 2020 the respondent worker saw Dr Zhou with a sore throat. He was concerned that Cipramol was affecting his memory loss. He felt he had poor memory for the last three to four months and was still experiencing anxiety symptoms.
Dr Zhou conducted a mini mental state examination on 20 August 2020.[10] The results of the examination indicated that there was no significant cognitive impairment identified by
[10] Page 279 of the first respondent’s reply
Dr Zhou. He did however complain about poor memory however he was sleeping better.
On 7 September 2020 the respondent worker saw Dr Zhou again and complained that he was feeling tired and his brain was ‘dragging’. He commented that his friends were saying his anxiety is increasing.
On 10 September 2020 there was a case conference between an iCare representative suggesting that the respondent worker needed to see a clinical psychologist for eight weeks of intensive cognitive behavioural therapy program. The respondent worker commented he was feeling worse and indicated he would find a clinical psychologist of his own to consult with.
On 2 October 2020 the respondent worker saw Dr Zhou again and indicated he was able to go water skiing last weekend however suffered an injury to his ribs and left hip. He said that he was feeling tired however felt his memory was coming back slowly.
There are further entries in the medical material however given the period of reimbursement is not necessary that I go into any great detail as they go beyond the period pleaded.

Dr Ingram

Dr Ingram treated Mr Shultz after a referral from the general practitioner Dr Zhou. He has prepared a report dated 17 February 2020. [11] Dr Ingham took a history from the respondent worker of symptoms which included a depressed mood anxiety irritability. Dr Ingram conducted a mental state examination and observed an anxious affect with no formal thought disorder or psychotic symptoms. Dr Ingram diagnosed the respondent worker’s condition as being consistent with an adjustment disorder with mixed anxiety and depressive features in the context of bullying and harassment in the workplace.
[11] Page 43 of the first respondent's reply
Dr Ingram didn’t comment directly on the respondent workers capacity to work though he takes the following history:
“He writes programming and has good feedback and is very creative, but again, tends not to follow through things and is quite forgetful.”

Discussion- Injury

There is an obvious divergence of opinion between Dr Miller, and then of Ms Grapsas and
Dr Ingram. Given the extensive treatment that Ms Grapsas has given the respondent worker and her observations of the symptomatology, I find it difficult to accept the characterisation given by Dr Miller that the respondent worker was merely engaged in an industrial dispute. The descriptions of suicidal ideation, anxiety, fear are all consistent with acceptance of
Ms Grapsas diagnosis.
The respondent submits that the medical opinion of Dr Miller should be afforded little weight based on a history that he has been given. Dr Miller appears to have a history that there was little symptomatology that the respondent worker is experiencing and as such the diagnosis should be set aside on the basis that there is indeed significant symptomatology the respondent worker is experiencing.
The second respondent also submitted that there was no indication that Dr Miller had indeed conducted an active mental state examination and as such his opinion should be afforded lower weight. I do agree that on the face the document there does not appear to be an active mental examination identified however I am not completely sure that that did not occur. Therefore, I do not rely on that submission making my finding as to injury.
The respondent submitted that even if I was to accept the respondent worker was suffering a degree of distress or anxiety associated with employment, it would be difficult to attribute any substantial component of his condition to that employment situation, as there is a longstanding recurrent history of psychiatric and psychological distress going back as far as 2006.
Mr Macken carefully identified entries in the clinical records which illustrated emotional distress the respondent worker had experienced in 2014, 2012 and 2011. These entries indicate the respondent worker experiencing stress, lack of sleep and emotional symptomatology and treatment for post-traumatic stress disorder.
Relevant entries included on 25 February 2014 the respondent worker complains of having a lot of stress as his work contract was coming to an end. In 2012 there was also a reference to a family mediation and the respondent worker not sleeping well and feeling stressed. On 5 October 2011[12] the respondent worker was having poor sleep, and having difficulty staying on task. There are other entries that also indicate he has had some difficulties at various times. Further the respondent worker indicates that he has been treated for post-traumatic stress before employment with the applicant employer.
[12] Page 7 of the Application
The applicant also relies upon a Statement of Particulars that has been provided in other proceedings in which the respondent worker was the claimant in 2010[13]. These were proceedings in the District Court of New South Wales and were a claim for damages. In those particulars the respondent worker was claiming for stress, depression, mood swings and other psychological problems. The proceedings were resolved.
[13] Page 62 of the Application
The applicant submits that this is a comprehensive Statement of Particulars based on instructions that were given by the respondent worker which formed the basis for a claim for compensation.
The applicant employer says that this indicates that what the respondent worker has been experiencing after his employment with the applicant employer is only a short term degree of distress associated with his employment, but certainly not a degree of distress which ought result in the payment of compensation.
I have looked closely at the particulars of injury relied upon in the District Court proceedings. They appear to my observation to be standard pleadings however they do indicate that the respondent worker must have had some previous psychological distress. The real question is what the effect of pre-existing psychological distress is.
Deputy President Roche in Attorney General’s Department v Kay,[14] looked at many matters the authority provides the proposition that the employers must take their employees as they find them. That is, there is an “eggshell psych” principle which is the equivalent of the “eggshell skull” principle. Further, that the worker’s perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment. In addition, as long as the events within the workplace were real, rather than imaginary, it does not matter that it affected the worker’s psyche because of a flawed perception of events because of a disordered mind.
[14] Attorney General’s Department v Kay [2010] NSWCCPD 76
Whilst I accept there are some entries of the respondent worker experiencing emotional symptomatology before the pleaded injury, which are illustrated in the general practitioner’s notes, there does not appear to me to be significant evidence to mount a finding that the respondent worker was anything other than generally fit and healthy at the start when he commenced employment with the applicant employer.
I therefore do not resile from my finding in respect of injury considering pre-existing symptomatology.

Incapacity

The respondent worker has been paid based on a full incapacity from the first respondent for the whole of the period that reimbursement is sought. It appears that payments have been made for weekly compensation from 23 May 2019 until 2 September 2020.[15]
[15] Pages 7 and 8 of the Application
Section 32A of the 1987 act provides definitions as to work capacity. No current work capacity, in relation to a worker, means a present inability arising from an injury such of the worker is not able to return to work either in the worker’s preinjury employment or in suitable employment.
Suitable employment 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.
The first time that there is any reference to Mr Shultz having any capacity to work would be on 2 April 2020 where a WorkCover certificate indicates the respondent worker could to work for some 20 hours per week. The WorkCover certificates have been prepared by Dr Zhou, who is the treating general practitioner, her clinical evidence I have outlined previously.
The applicant employer says that these medical certificates are not particularly expansive and do not provide any significant reasoning. I agree that on the face of the documents, the certifications do not provide any detail from Dr Zhou as to her assessment of the respondent worker’s capacity to work.
Whilst I agree that the medical certificates do not provide significant reasoning, but these medical certificates have been provided on an ongoing basis from the respondent worker’s general practitioner, after regular consultations. I think they should be afforded significant weight. Dr Zhou has seen the respondent worker regularly following the injury. She is in a unique position, together with Ms Grapsas to assess the respondent worker’s capacity to work.
Indeed Dr Zhou, though not a trained psychiatrist, appears from the treating notes to be taking a reasonable history from the respondent worker each time there is a regular consultation. It is on this basis that I accept that the respondent worker had no real current work capacity whilst certified by Dr Zhou (that is until 2 April 2020).
I reject the opinion as to work capacity as opined by Dr Miller. I prefer the opinions of Dr Zhou and Ms Grapsas who have treated the respondent worker regularly and to my mind are in a better position to be able to comment on the work capacity.
Whilst Ms Grapsas observed a deterioration in the respondent workers condition in July 2020, she nevertheless understands that he is looking for work. No change was made in the WorkCover certification to represent any change in work capacity.
The respondents point out that there is evidence in the treating medical material of the respondent worker continuing to suffer from psychological symptomatology arising from his anxiety and depressive state.
On 14 September 2020 a reference is made to Dr Chim[16] who took a history of bullying and development of depression and anxiety including suicidal tendency. At that stage the doctor formed the view that the respondent worker was suffering from anxiety and depression and it was related to his injury.
[16] Reply page 17
On 12 November 2020[17] there is a document which says that there were persisting symptoms of anxiety and stress which were barriers to Mr Shultz obtaining work.
[17] Reply page 23
These two entries however are after the period of compensation paid for which reimbursement was sought.
The respondents agree that the respondent worker has an impressive resume, however submit that does not take away from the fact that the gentleman is suffering from anxiety and depression and if he does have a capacity for work it is a very much reduced capacity which does not reflect on his capacity that is illustrated in the resume.
I have looked and examined the respond workers resume[18]. It was pointed out that the respondent worker has reasonably significant qualifications in a number of areas and has demonstrated the ability to use those qualifications and skills to make himself employable.
[18] Page 1 late documents dated 12 December 2021
The resume must be looked at in light of the psychological observations made by
Ms Grapsas and Dr Zhou. An impressive resume whilst it exists, does not provide evidence of capacity to be able to sustain employment
The respondent worker is able to play in a band and makes no secret of the fact that he is able to do so. It appears to me that his involvement in this band is not significant and does not carry with it a significant financial benefit.
In the documents it appears that an idea was floated that the respondent worker would be able to initiate a water-skiing school. The respondent submits the appropriate payment for that type of business would be approximately $85 per hour. I believe, the ability for the respondent worker to be able to undertake that business with anxiety and depression is minimal. I also take into account the respondent worker’s symptomatology as described by Dr Zhou which included reported problems with memory and difficulty leaving the house.
It was submitted by the respondents that certainly payments from 23 March 2019 to 2 April 2020 the respondent worker was totally incapacitated. I agree with this assessment based on Dr Zhou’s certification.
The respondent worker points out there is a contradiction between Dr Zhou’s certificate and the opinions of Dr Ingram and Ms Grapsas following the period of 2 April 2020. Dr Ingram and Anne Grapsas say that Mr Shultz has no capacity, yet the medical certificates say there is capacity for some 20 hours of work a week.
I was urged by the respondent worker not to take the medical certificates at face value and that I should put more weight on the specialists in mental health, Dr Ingram and Ms Grapsas as to their opinions as to capacity.
Ms Grapsas is certainly painting a picture of a fluctuating health condition. However, there is limited utility as she does not appear grapple directly with the applicant’s capacity to work. Certainly, in October 2019, she comments that the respondent worker’s mental and emotional health had ‘improved markedly’ however he still demonstrated symptoms of anxiety and security. She opined that the respondent worker would not be capable of working full-time duties in his previous position however understood that he had listed himself with two recruitment agencies to facilitate a return to work. To my mind this does not represent a clear opinion that the respondent worker was unable to return to work on some part-time basis.
Similarly, in the report dated 10 July 2020 whilst Ms Grapsas held the view the respondent worker was unfit for work duties, she also commented that he was unable to return to preinjury employment however had contacted two recruitment agencies seeking employment. She indicated that concentration was being placed on exploring viable options for employment. To my mind this isn’t a strong opinion that the respondent worker was unable to work in some limited capacity.
In making my determination I take into account the observations of Ms Grapsas in July 2020 including the return of suicidal ideation and a general regression. This however needs to be looked at in concert with the opinion of Dr Zhou and her observations of the respondent worker.
The respondent worker’s counsel submitted that when you look at this general picture of treatment, the respondent worker’s symptoms have not improved to a point in September 2020 where he could return to full-time work. Indeed, it was submitted that he would not even be able to participate in 20 hours per week when you consider what Dr Zhou has noted in terms of symptomatology.
I do not agree that Dr Zhou observations can be read in that manner. Clearly there are entries that the respondent worker has ongoing symptomatology however is Dr Zhou’s opinion that in companion with that symptomatology the respondent worker was able to work 20 hours per week.
In relation to the respondent worker’s work as a musician, Dr Ingram, the first treating psychiatrist, outlines the respondent worker’s participation in his report dated 17 February 2020.[19] Dr Ingram takes the following history:
“He told me that he played music all his life but has been a musician for the last 18 months playing guitar and singing. He told me that he does about 2 gigs a week at the Pyrmont Bridge Hotel. He told me that he is not really that good, but he does enjoy music.”
[19] Page 43 of the first respondent’s Reply
The respondent worker submits that in the context of the music it does not represent a capacity to work however it is enjoyment and recreational. Further, the musical work is not claimed as concurrent employment. It can be characterised as infrequent and low paying.
The ability to play in a band does show some capacity however is not of any significance. I accept that the respondent’s workers musical commitment is for enjoyment and recreation.
One must also consider other activities the respondent worker mentioned in the material before me. The applicant referred to a business known as Cargo Cloud which was a business operated by the respondent worker though unsuccessfully. The applicant employer submitted that this indicates and demonstrates capacity to have some capacity for employment.

There is no evidence before me however that this business was successful in observing the problems that the respondent worker had so far as his memory and anxiety was concerned, which is evident in the treating notes of Dr Zhou, it is entirely reasonable that such a business had limited prospects of success. It does not to my mind illustrate a capacity to work.
It was also submitted by the applicant that the respondent worker had a capacity to do the job with the respondent until his employment was terminated and there is no reason that his capacity to perform that job would not continue. This however does not take into account the observations of Dr Zhou and Ms Grapsas as to respondent worker’s symptomatology shortly after his employment was terminated for instance on 24 May 2019 the respondent worker attended for a consultation with Ms Grapsas in a distressed state feeling suicidal. To my mind this is significant evidence that the respondent worker had no capacity to work at that time at all.
The applicant also points out that the respondent worker claimed relief in the Fair Work Commission for unfair dismissal seeking reinstatement or re-employment of compensation. This, it is submitted, demonstrates a capacity for employment. It is difficult for me to use the evidence in the way sought by the applicant. Quite clearly the treating material by
Dr Zhou does not support such a submission.
The applicant employer points out the most recent certification of employment, which is restricted to four hours a day, five days a week, namely 20 hours a week. The applicant employer submitted that the respondent worker would have a capacity to earn $70 per hour in a suitable activity.[20] The resulting mathematics of 20 hours per week at $70 per hour would indicate that the he could earn substantially more than he was earning in employment with the applicant employer. The respondent worker was earning $75,000 per annum with the applicant employer.
[20] Page 71 of the late documents dated 10 December 2020
I have looked at the document at page 71 of the Application and it appears to be a document prepared by the respondent worker under his own hand where he indicates that his rate of future revenue expectations would be approximately $70 per hour in the capacity as a consultant on freight forwarding. Whilst the applicant employer says that this demonstrates a capacity to earn an amount which would be at that level, it appears to me this is a “hopeful document” that is of anticipated expectations as opposed to the reality. There is no evidence before me that the respondent worker could indeed obtain employment available to him that would reach $70 per hour.
The applicant employer says that the certifications of the reduced capacity to 20 hours per week is from 24 July and from that date at a minimum the respondent worker should be able to obtain employment. The lowest rate the applicant puts on the respondent worker’s ability to earn would be $28 per hour and that he could easily earn in excess of that figure. No submissions were made by the respondent’s suggesting a different hourly rate.
The rate of $28 per hour appears to me to be a suitable hourly rate to adopt in calculating the respondent worker’s current work capacity. Quite clearly, he has a skill set based on his experience which places him above that of a menial worker earning the minimum wage. He has illustrated customer service experience and significant computer skills. To my mind the hourly rate of $28 per hour takes into account his inability to be placed in a stressful work environment but recognises his transferable skill set.
I accept that from 2 April 2020 the respondent worker had a work capacity of 20 hours per week earning $28 per hour. I therefore find that from 2 April 2020 the respondent worker had a current work capacity earning $480 per week. Before that date he had no current work capacity,

Section 60 Expenses

Section 60 of the 1987 Act provides:

“60 COMPENSATION FOR COST OF MEDICAL OR HOSPITAL TREATMENT AND REHABILITATION ETC

(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,

the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

Burke CCJ in Rose[21] considered what reasonably necessary treatment was. In the context of section 10 of the Workers Compensation Act 1926[22]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition on restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense an employer can only be liable for the cost of reasonable treatment.”
[21] Rose v Health Commission NSW (1986) 2 NSWCCR 32 (Rose).
[22] Par 42.
The applicant employer says there are certain payments that have been made that do not appear to be for medical treatment. A claim for management expenses to a rehabilitation company which seems to be the preparation of a vocational capacity report was identified.
The vocational capacity report has been identified by the applicant employer does not constitute a proper section 60 expenses. It is clearly not for treatment of the respondent worker.
I accept this submission, I am not satisfied that it has been requested and obtained for treatment of the respondent worker. The applicant employer is therefore not liable for the cost of that report.

SUMMARY

I direct the parties to file an agreement as to the figure of reimbursement representing my findings contained in this decision within seven days.

Elizabeth Beilby
MEMBER

19 March 2021