Holmes v Central Coast Council - [2022] NSWPIC 70

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Holmes v Central Coast Council [2022] NSWPIC 70
APPLICANT:	Laurie Holmes
RESPONDENT:	Central Coast Council
MEMBER:	John Wynyard
DATE OF DECISION:	17 February 2022
CATCHWORDS:	WORKERS COMPENSATION – Expedited assessment following work capacity decision to reduce psychiatrically injured worker’s weekly compensation to nil; whether decision made on basis of a misstatement by the vocational assessor of the recommendation made by the applicant’s GP; whether reliance on employer’s medico-legal Psychiatrist’s opinion as to capacity had any basis in fact; whether applicant’s status likely to continue indefinitely; Held - vocational assessor proceeded on wrong assumption that both the employer’s psychiatrist’s recommendations (fit for 14 hours per week) and the GP (fit for online study 8 hours per week) indicated a capacity to earn; GP stated before and after the work capacity decision was taken that applicant had no current capacity, and could only do online study from home for 8 hours per week; evidence confirmed that assessment; meaning of the phrase “continue indefinitely” considered; Roberts v University of Sydney applied; Chea v Woolworths considered; work capacity decision revoked; weekly payments restored pursuant to section 38(2) of the Workers Compensation 1987 Act.
DIRECTIONS MADE:	The work capacity decision of 7 April 2021 is revoked. 1. The respondent will pay to the applicant the amount of $379.15 per week from 14 July 2021 to date and continuing pursuant to s 38(2) of the Workers Compensation 1987 Act.

BACKGROUND

This is an expedited assessment regarding the assessment of weekly benefits where a work capacity decision is in dispute.
A Work Capacity Decision was made on 7 April 2021 that Ms Homes (the applicant) was able to earn $420 per week in suitable employment as a clerical/administrative officer working 14 hours per week.
Ms Holmes’s pre-injury average weekly earnings (PIAWE) was assessed at $473.94 per week, the applicable rate pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act) being $379.15 per week.
The parties were legally represented.
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.
The issue to be determined in this dispute is as to whether the assessment of Ms Holmes’s work capacity is correct.
The work capacity decision was reviewed by the insurer on 11 August 2021 and confirmed.

STATEMENT OF REASONS

Ms Holmes suffered a psychological injury whilst employed as an admin support officer by the Local Government – Central Coast Council (the respondent) on a deemed date of 27 April 2018.

Work capacity decision

The decision was contained in a s 78 notice that issued on 7 April 2021 and was confirmed as indicated in a s 287 notice dated 11 August 2021. The work capacity decision was made following an opinion obtained from Konekt Work Care on 4 February 2021 by Ms Natalie Hancox (the rehab report).

The rehab report

In her executive summary Ms Hancox said:[1]
“l Ms Holmes is currently…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 70
Decision Date: 17 February 2022

CaseChat Overview and Summary

In Holmes v Central Coast Council, the applicant, Mr Holmes, sought to challenge a decision made by the respondent, Central Coast Council, regarding his weekly compensation payments. The dispute arose after the Council reduced Mr Holmes's weekly compensation to nil, following an assessment of his work capacity. The case was heard and determined by the Workers Compensation Regulator of New South Wales.

The primary legal issues before the court were whether the decision to reduce Mr Holmes's compensation was made based on a misstatement by the vocational assessor regarding the recommendation of Mr Holmes's GP, and whether the reliance on the employer's medico-legal Psychiatrist's opinion on Mr Holmes's capacity had any factual basis. Furthermore, the court needed to determine if Mr Holmes's status was likely to continue indefinitely.

The court found that the vocational assessor had made an incorrect assumption regarding both the employer's psychiatrist's recommendations and the applicant's GP's recommendation. The GP had consistently stated that Mr Holmes had no current capacity to work and could only undertake online study for eight hours per week. This evidence was confirmed by other witnesses. The phrase "continue indefinitely" was considered in light of Roberts v University of Sydney and Chea v Woolworths, and it was concluded that Mr Holmes's status was indeed likely to continue indefinitely. Consequently, the decision to reduce Mr Holmes's compensation was revoked, and his weekly payments were restored in accordance with section 38(2) of the Workers Compensation 1987 Act.

The court ordered that Mr Holmes's weekly compensation payments be restored and that the respondent, Central Coast Council, pay the applicant's costs associated with the appeal.

Orders