Holmes v Central Coast Council
[2022] NSWPIC 70
•17 February 2022
| 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 certified by Dr Conroy as having capacity for 4 hours per day, 2 days per week with a recommendation of Ms Holmes engaging in training before commencing work. Dr Conroy and Ms Holmes have reported on a non-compensable health condition, however stated that her capacity remains at 4 hours, 2 days.
· Independent Medical Examiner Dr Graham Vickery stated in report dated 30 November 2020 that Ms Holmes has capacity for up to 14 hours per week in a similar position to her pre-injury role.”
[1] Reply p 14.
Dr Vickery
Dr Graham Vickery, psychiatrist, was retained by the respondent Council. He noted that Ms Holmes had been employed by the Council since 1995 and was to be medically retired on 20 November 2020. Dr Vickery took a comprehensive history of Ms Holmes’s presenting complaints. His diagnosis was of a Major Depressive Disorder. As to Ms Holmes’s capacity for employment, Dr Vickery said:[2]
“There is capacity for employment for up to 14 hours a week in a non-demanding and supportive work environment.”
[2] Reply p 11.
Dr Vickery was asked “In your opinion, would [Ms Holmes] be fit to work up to 14 hours p/wk if not for her current non-work related medical condition?”
Dr Vickery replied:
“Ms Holmes would be fit to work up to 14 hours per week if not for any current non-work related medical condition.”
He did not identify the non-related condition in his report of 30 November 2020, but I note that he assessed Ms Holmes on 4 July 2018 and I assume he supplied a report at that time which has not been lodged.
Dr Conroy
Ms Holmes’s general practitioner (GP) is Dr Andrew Conroy and in a report of 26 August 2020 he advised the respondent that he had been awaiting reports from Ms Holmes’s treating specialists, which I assume Dr Conroy had by then received. He said:[3]
“Current capacity for work,
I would consider that Laurie has no current capacity for work
Current capacity for flexible online study,
I would consider that Laurie could do online study from home for up to 4 hours per week
Capacity prognosis,
This is currently unclear, specifically the timeframe to return to work, with ongoing
investigations and trial of treatments.”
[3] Application to Resolve a Disppute (ARD) p 55.
On 31 August 2020 Dr Conroy identified the non-work-related condition, which is not relevant to this dispute.
On 10 June 2021 Dr Conroy wrote to Ms Holmes’s solicitors. He gave a brief history of Ms Holmes’s presentation with her psychological work-place injury in April 2018. Dr Conroy noted that alternative employment was sought with the same employer, the Council, but her condition deteriorated further and Ms Holmes ended up with no work capacity.
Dr Conroy related that he recommended that Ms Holmes seek further training and rehabilitation to find “meaningful employment from another employer”. He said:[4]
“…. The recommended capacity for this was at four hours per day, two days per week via flexible training programme, for example an online course.
In relation to her compensable condition Laurie remains capable of retraining, upskilling, or study for 4 hours per day, two days per week, in order to enter a work environment outside of her current employer. It is my opinion that Laurie is not currently fit to work 14 hours per week in any role due to the continuing psychological issues from her workplace injury.”
Applicant’s statements
[4] ARD p 51.
28 September 2021
Ms Holmes made two statements. In her statement of 28 September 2021 she related that she attempted to return to work “numerous times,” but was returned to the same division in which she had suffered her psychiatric injury. This made her “increasingly anxious and triggered my symptoms of PTSD.”[5]
[5] ARD p 4.
Ms Holmes referred to the first meeting with Ms Hancox on 2 July 2018, following which Ms Holmes emailed the respondent enquiring about available positions. Ms Holmes related that she had “numerous conferences” with Konnect and the respondent, but they became repetitive and did not lead to any outcomes.
Ms Holmes also referred to a case conference which included her GP, where a potential position in Erina was discussed, for which she had an interview. She said that after two weeks of waiting she was told she was “not appropriate.” Ms Holmes said that she felt that she was being “set up to fail” and her symptoms increased.[6]
[6] ARD p 5.
On another occasion, following another case conference, Ms Holmes said she was offered a sports and recreation position, but she found that she had to learn Excel, contrary to what she had been told, and that her trainer did not appear on the second day, so that she felt she had been left on her own in contravention of the return to work plan. After four days’ recovery from a return of her anxiety, Ms Holmes was told that there was a shortage of staff and that she should not return to work.
In March 2019, Ms Holmes said she took a temporary position at Wyong (she did not identify the employer, but it may have been the Council). She worked there for about five weeks and thought she was doing well. However when she was away on pre-planned leave she saw that her position was advertised and indeed applications for it had closed while she was still away. When she returned, she was told that the role was suitable for her but that she needed to formally apply for the position. She was told that she would be supplied with written questions to assist her to answer.
At the interview these questions were not supplied and, although she had been told that the interviewers knew about her past experiences, she was asked whether she had ever been in a “conflict situation.” This caused an adverse reaction which resulted in her vomiting in the gutter outside the interview room.
From 1 August 2019 to 6 August 2019 Ms Holmes was admitted to Berkeley Vale Mental Health Clinic following this episode. Her employment was terminated on medical grounds in November 2020, and she has not worked since.
Later on in her statement, Ms Holmes referred to the certification given by Dr Conroy.[7] She described it as “a flexible training program so that I can up skill when I am fit to return to work.” She said that she had started a medical administration course, but struggled to concentrate due to her difficulties in absorbing the material.
[7] ARD p 10.
Ms Holmes recounted that she was taken to Gosford Hospital on 24 August 2021 after having a major depressive episode.
19 November 2021
This statement was lodged in an Application to Admit Late Documents (ALD). Ms Holmes described her reaction to the findings of the work capacity decision. Because she was no longer receiving any compensation and was unable therefore to meet her mortgage commitments, or to feed her children adequately, she applied for two roles.
The first was with the Department of Customer Service as a licensing representative, but she failed the Zoom Interview due to her reaction when she was asked how she would deal with a conflict situation. Her anxiety again caused her to vomit afterwards.
The second position applied for was with Service NSW. She attended one telephone interview on 6 July 2021, but she which cancelled her second interview due to her anxiety. She has not applied for employment since.
In this statement, she referred to two annexures, but unfortunately neither were lodged.
SUBMISSIONS
Ms Holmes first addressed the question as to the jurisdiction of the Personal Injury Commission (Commission) regarding the application of s 38(2) of the 1987 Act. The respondent accepted that the Commission had jurisdiction to award weekly compensation during the third entitlement period, so that this issue may be put to one side.
The applicant submitted that the opinion of her general practitioner, Dr Conroy should be accepted. I was referred to Dr Conroy’s consistent opinion that the four hours per day two days per week certification was not an indication that Ms Holmes was fit for suitable duties, but that she was able to engage in retraining, upskilling or studies in order to prepare for a return to work.
The applicant referred to her statements of 28 September 2021 and 19 November 2021.
It was submitted that the experiences therein described as to her attempts to return to work were not consistent with the respondent’s submission that she was fit and able to work - particularly in a clerical/administrative role.
The respondent also referred to the two hospital admissions of 6 August 2018 and 24 August 2021 as evidence of the seriousness of her condition. She noted in passing that the treatment costs in 2018 had been met by the respondent.
The applicant then referred to the competing medical opinions as to her work capacity.
With regard to Dr Vickery’s opinion, Ms Holmes submitted firstly that Dr Vickery did not say that she was fit to work for 14 hours, but rather that she was fit to work “up to” 14 hours per week. Ms Holmes conceded that nonetheless that interpretation would show some degree of fitness for suitable employment.
Ms Holmes submitted that little weight should be given to Dr Vickery’s opinion, as:
· It was incongruous with the rest of his report.
· There were no facts or circumstances advanced by Dr Vickery for his opinion.
· His failure to explain his opinion made it no more than an ipse dixit.
On the other hand, Ms Holmes submitted that Dr Conroy’s report should be accepted, as:
· Dr Conroy’s opinion was consistent with his extensive record of treating Ms Holmes as her general practitioner.
· Dr Conroy’s latest opinion was more likely to be reflective of her current work capacity.
· Dr Vickery examined her only once, five months before the work capacity decision was taken.
I would accordingly give little weight to the rehab report, as:
· Ms Hancox had not confirmed with Ms Holmes that her recommendations were suitable, and the vocational assessment dated April 2020 that was referred to in the work capacity decision had neither been served, nor lodged.
· A clerical/administrative role was not suitable employment in any event, as Ms Holmes, as a result of her symptoms, did not have the mental skills required for the recommended job.
Accordingly, the applicant submitted that the respondent should be ordered to pay weekly compensation pursuant to s 38 from 14 July 2021 to date and continuing at the rate of $379.15.
Respondent’s submissions
The respondent raised no issue as to jurisdiction, conceding that the issue had been settled by authority. It also agreed that the claim for weekly payments should be amended to claim a continuing award. The respondent submitted that the essential issues were:
· whether or not Ms Holmes had a current work capacity;
· whether Ms Holmes was properly to be assessed within the ambit of s 38(3)(c) or, if not, and
· whether the terms of s 38(2) applied.
The respondent employer referred to Dr Vickery’s report and the attempts Ms Holmes described to him of returning to work.
A “balanced reading” of Dr Vickery’s report would suggest that he advised that Ms Holmes had a capacity for employment up to 14 hours per week in a non-demanding and supportive work environment. The respondent conceded that there was some ambiguity in Dr Vickery’s various answers. The respondent also conceded that Dr Vickery’s reference to Ms Holmes non--related medical issue was unhelpful.
It was implicit in the certification made by Dr Conroy, on the other hand, that he too considered that Ms Holmes had current work capacity. If that were not the case, the respondent argued, then Dr Conroy would have said so. Further, it was argued, if Ms Holmes had not had current work capacity, she would not have applied for the two jobs she described in her supplementary statement of 19 November 2021.
The respondent then referred to the terms of s 32A of the 1987 Act and submitted that the labour market analysis report had identified a number of putative employers in roles that included “on-the-job” training. Thus, the additional training that Ms Holmes was able to do by virtue of Dr Conroy’s advice, could be undertaken whilst she was actually in gainful employment. The respondent said it was difficult to see how the further training “obliquely recommended” by Dr Conroy would improve Ms Holmes capacity for employment. The fact that she had continued to apply for suitable roles was referred to as “definitive evidence” of her current work capacity.
The respondent submitted that accordingly the evidentiary balance is in favour of Ms Holmes having a current work capacity. She did not therefore qualify under s 38(2) and was unable to comply with the requirements of s 38(3)(b).
The respondent also submitted “for the sake of completion” that there was no evidence addressing the conjunctive requirement of s 38(3) (c) of the 1987 Act. Properly interpreted, the recommendation for further training by Dr Conroy admitted the probability that she would be capable of preforming further additional employment in the future.
With regard to s 38(2), the respondent submitted that Ms Holmes did not qualify in any event, because she had not satisfied the provision within the subsection that her total incapacity was likely to continue indefinitely.
Submissions in reply
We were referred to Dr Conroy’s explicit opinion of 10 June 2021 that Ms Holmes did not have any current work capacity.
Ms Holmes asked rhetorically how it could be argued that she had capacity because she had applied for two other jobs in the face of her unchallenged evidence that she was unable to do either of them.
To the submission that Ms Holmes had not complied with the provisions of s 38(2) she responded that a proper interpretation of Dr Conroy’s opinion would enable me to infer that she was likely to continue indefinitely to have no current work capacity.
DISCUSSION
Section 32A of the 1987 Act provides relevantly:
“‘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 38 of the 1987 Act provides relevantly:
“(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
…….
(8) A worker's entitlement to compensation under this section may be reassessed at any time.”
Misstatement by Ms Hancox
The resolution of this dispute depends, as the submissions of both sides agreed, primarily upon which assessment is preferred. The rehab report was prepared on the assumption that Dr Vickery’s advice that Ms Holmes was fit for up to 14 hours a week in a “non-demanding and supportive work environment”, was reliable. This recommendation was substantially different to that made by Dr Conroy, a fact that Ms Hancox did not appear to appreciate.
Dr Conroy was Ms Holmes’ GP during these events and his assessment was that she was only capable of online study from home in order to retrain or up-skill preparatory to returning to the workforce. He did not, as Ms Hancox indicated in her Executive Summary, say that Ms Holmes had a “capacity for 4 hours per day, 2 days per week with a recommendation of Ms Holmes engaging in training before commencing work.” This error seems to have underscored the assumptions upon which Ms Hancox proceeded to make her assessment.
It is not unusual in cases such as this for the insurer to obtain some evidence from the treating GP – usually by facsimile – of his/her approval of the proposed suitable duties identified by the vocational assessment. Ms Hancox did not undertake such an enquiry – presumably because she mistakenly thought that the two opinions were sufficiently alike to render such a step unnecessary. A certification that Ms Holmes was fit for 8 hours’ work per week was within Dr Vickery’s assessment of up to 14 hours per week.
I find this misunderstanding to considerably weaken Ms Hancox’s opinion.
The competing assessments
In the first place, I accept Ms Holmes’ submission that Dr Conroy could be taken to have a more complete and detailed knowledge of the course of Ms Holmes’ illness. Dr Conroy had been Ms Holmes treating GP since July 2015, some three years prior to the onset of Ms Holmes’ psychiatric condition.
Moreover, he had made his recommendation that Ms Holmes had “no current work capacity” and could do online study at home up to four hours per week on 26 August 2020, many months before Ms Hancox made her report. Dr Conroy has not altered his opinion since that time, explaining in his report of 10 June 2021 that his recommendation is based on a capacity for Ms Holmes to retrain to a sufficient standard to enable her to consider re-joining the workforce.
Dr Vickery’s recommendation has proven to be unrealistic on at least four separate occasions. Ms Hancox stated that her relationship with Ms Holmes began as early as 2 July 2018, so that Ms Hancox had a first-hand experience of Ms Holmes’ limitations.
I accept Ms Holmes’ evidence that she had numerous repetitive case conferences which did not lead to any outcomes. I accept that Ms Holmes was interviewed for some work at Erina following one of these case conferences, but was told that she was not appropriate for the post. I accept that she was offered a job at Sports and Recreation, but that the failure to give adequate training, which I accept was a condition of her employment, resulted in a further breakdown because of her mental state. I accept further that she took a temporary job at Wyong, which appeared to be successful, but that she was unsuccessful in an interview for the same post that she was later required to sit, which left her traumatised and eventually resulted in her admission to Berkely Vale Mental Health Clinic in August 2019.
I accept that, once the weekly compensation ceased as a result of the subject work capacity decision, Ms Holmes’ straitened circumstances motivated her to try and seek further work. I accept that she again failed during the interview for one position, and that she was unable to face a telephone interview in her second attempt.
I was not assisted by Dr Vickery’s report in any event. The concession made by the respondent about his reference to Ms Holmes’ current non-work related condition was well made, as I was unable to understand the relevance of that reference in the context of his recommendation. More significantly, Dr Vickery did not explicitly refer to the facts and circumstances on which he based his recommendation. In the face of the history that he took which, was by and large consistent with other histories, such further explanation was in my view necessary. Whilst his opinion was that Ms Holmes had a Major Depressive Disorder, he nonetheless found that there was “no apparent incapacitating cognitive impairment.” Dr Vickery did not explain how those findings resulted in his recommendation.[8]
[8] Reply p 11.
I accordingly accept Ms Holmes submission that Dr Vickery’s report should be viewed as an ipse dixit.
It follows that I am not satisfied Ms Holmes has any capacity to earn. The work capacity decision was based on an erroneous assumption, as indicated, and the evidence satisfies me that Ms Holmes has no current work capacity.
Section 38(2)
This finding engages the provisions of s 38 (2) of the 1987 Act, rather than s 38 (3). The respondent, however, submitted that Ms Holmes had failed to prove that her current status of having no current work capacity was “likely to continue indefinitely.”
This phrase was considered by Arbitrator (as he then was) John Harris in Roberts v University of Sydney,[9] when considering the provisions of s 38(3)(c). He referred to the provisions of s 38(8), noting that compensation assessed under the section may be reassessed at any time. He said:[10]
“97. … That sub-section indicates that satisfaction of the pre-conditions in s 38(3) may fluctuate over time.
98. There were submissions on the meaning of ‘indefinitely’ in the context of ‘likely to continue indefinitely’.
99. I agree with the applicant’s submission that the meaning of ‘indefinitely’ is akin to an unknown or non-specific period.
100. I also agree with part of the respondent’s submission that the meaning relates to the ‘foreseeable future’, although the meaning is probably more restrictive than that because the satisfaction of the concept requires incapacity of an indefinite nature rather than just in the foreseeable period.
101. …
102. …
103. The meaning of ‘indefinitely’ is not the same as ‘definitely’. ‘Indefinitely’ does not mean ‘permanent’, although this was only indirectly suggested by the respondent when it submitted that it meant the same as ‘maximum medical improvement’.”
[9] [2021] NSW WCC 25 (Roberts).
[10] Roberts from [97].
I adopt, with respect, the reasoning of the learned Arbitrator, now Principal Member.
In Chea v Woolworths Group Limited[11] Member Catherine McDonald referred to Roberts in a case which involved the application of s 38 (2). Member McDonald treated the phrase “likely to continue indefinitely” as being a factual issue, as in that case the worker’s reluctance to undergo surgery was sufficient to satisfy the requirement of indefinite continuance.
[11] [2022] NSW PIC 26.
Is Ms Holmes’ current total incapacity likely to continue indefinitely?
Although attempts were made to find light work by way of the intervention of Ms Hancox as early as 2 July 2018, they were unsuccessful. It is not clear whether Ms Holmes attempted to return to work between 6 August 2019 when she was discharged from Berkely Vale Mental Health Clinic and her eventual medical discharge from the employer in November 2020, however it is evident that she has not been able to work since.
That history is consonant with the probability that Ms Holmes will continue to be unable to work into the foreseeable future, accepting the limitations to this interpretation of the phrase discussed by the Principal Member. The failures to obtain employment described by her in her supplementary statement are consistent with that proposition. As a matter of fact, there is no evidence that would indicate Ms Holmes is likely to recover any earning capacity within any definite timeframe, and I am satisfied therefore that her status of no current work capacity is likely to continue indefinitely.
DECISION
By consent, I amend the claim for weekly payment of compensation in the ARD to delete the reference to the closure of the period claimed on 9 November 2021, and substitute therefore the words “to date and continuing.”
The work capacity decision of 7 April 2021 is revoked.
The respondent will pay the amount of $379.15 per week from 14 July 2021 to date and continuing pursuant to s 38(2) of the 1987 Act.
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